PLCCS 2012 Judgments

2012 P L C (C.S.) 166

[Federal Service Tribunal]

Before Sayed Mehar Hussain Shah and M.A. Aziz; Members Syed ZAHIR SHAH

Versus

DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS, KARACHI and 2 others .

Appeal No.330(K)(CS) of 2003, decided on 26th February, 2011.

Removal From Service (Special Powers) Ordinance (XVII of 2000)---

---Ss. 3, 5, 6 & 10---Service Tribunals Act (LXX of 1973), S.4---Removal from service---Major penalty of removal from service was imposed upon the appellant without issuing show-cause notice or holding a regular departmental inquiry---Ex parte action was taken against the appellant, whereby major penalty of removal from service was imposed upon him---Validity---Before awarding major penalty upon a delinquent employee, a regular departmental inquiry was necessary, where accused/employee was to be provided full chance of defence as enshrined in the maxim "audi alteram partem ", which was lacking in the case---Impugned order imposing major penalty of removal from service upon the appellant was set aside; he was ordered to be reinstated in service, with direction to the department to initiate and hold de novo departmental proceedings against the appellant by providing full chance to him to cross-examine the witnesses and to defend himself properly---Such proceedings would be initiated and completed within a period of 120 days---Question of back benefits would depend upon the outcome of such proceedings.

2000 PLC (C.S.) 2044; PLD 2001 SC 980; 1980 SCMR 850;• 1999 SCMR 841; 2002 SCMR 57 and 2003 PLC (C.S.) 395/514 ref.

Sanaullah Noor Ghouri for Appellant.

Ms. Sayeeda Bilquis for Respondents.

Date of hearing: 20th December, 2010.

2012 P L C (C.S.) 169

[Federal Service Tribunal]

Before Moazzam Hayat and Farrakh Qayyum, Members MUHAMMAD AKRAM JAVED

Versus

SECRETARY/CHAIRMAN, M/O RAILWAYS, ISLAMABAD and 4 others

Appeal No.1545(R)(CS) of 2009, decided on 8th March, 2011.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3 & 10---Civil Servants Act (LXXI of 1973), S.12---Service Tribunals Act (LXX of 1973), S.4---Reversion---Appellant who was a Ward Keeper in BS-10 in Pakistan Railways, was appointed as Assistant Controller of Store against 5% promotion quota reserved for employees getting high degrees, but subsequently he was reverted as Ward Keeper---Departmental appeal of the appellant having not been responded, he filed appeal before the Service Tribunal---Appellant had claimed that he had acquired higher qualification by getting B.Sc. degree in Civil Engineering from abroad---Validity---Such degree from foreign University, had to be recognized by the Pakistan Engineering Council and for that, registration with the Council was essential, but appellant did not get himself registered with the Engineering Council---Degree obtained by appellant from foreign University, therefore, could not be taken into consideration---Appellant having not been registered with Pakistan Engineering Council, department was justified in. not taking into consideration his higher academic qualification---Appellant was promoted from BS-10 to BS-17 by the Officer, who was not competent to pass such promotion order---Promoting an official to BS-17 was the prerogative of the Secretary/Chairman of Pakistan Railways---Appellant, in circumstances, was not lawfully promoted and withdrawal of order of promotion was legally justified---Departmental appeal of the appellant was not filed within the stipulated period and was time-barred---Appeal by the appellant, being not competent was dismissed as not maintainable and being without any merit.

2007 SCMR 513 rel.

Raja Muhammad Yaqoob Khan for Appellant.

Umair Azam Khan for Respondents.

Date of hearing: 8th March, 2011.

2012 P L C (C.S.) 175

[Federal Service Tribunal]

Before Abdul Ghani Shaikh, Chairman and M.A. Aziz, Member

MEHMOOD KHAN

Versus

FEDERATION OF PAKISTAN through Chairman, Pakistan Railway Board

Ministry of Railway and others

Appeal No.208(K)(CS) of 2005, decided on 18th January, 2011.

Civil Servants Act (LXXI of 1973)---

----S. 12---Service Tribunals Act (LXX of 1973), S.4---Removal From Service (Special Powers) Ordinance (XVII of 2000), Ss.3, 5, 6 & 10---Reversion---Dispensing with regular inquiry---Major penalty of reversion from the post of grade-III (B-11) to grade-I (B-8) was imposed upon the appellant on the allegation of misconduct and corruption, after issuing him show-cause notice and charge-sheeting him, but without holding any enquiry against him---Appellant had been reverted two steps down, which -was not the spirit of the law---Order of reversion did not specify the period of penalty---Penalty had been imposed on extraneous consideration which was not the subject of the occurrence, but he was penalized on the basis of his past record, which could not be taken into consideration---No regular inquiry was made while the penalty fell into the category of major purview which could not be imposed without holding a regular inquiry---Order imposing penalty was bad, in circumstances---Impugned order was set aside with direction to the authorities to restore the appellant in his original position of Grade-III (B-11) from the date of impugned order.

1993 PLC 1443 and 2005 SCMR 1306 rel. Sanaullah Noor Ghauri for Appellant.

Miss Noorus Sabah associate of Latifur Rehman Survery Advocate for Respondents.

Date of hearing: 13th January, 2011.

2012 P L C (C.S.) 184

[Federal Service Tribunal]

Before Moazzam Hayat and Farrakh Qayyum, Members

NAEEM IQBAL and others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Defence, Government of Pakistan and 2 others

Appeals Nos.1065(R)CS and 1066(R)CS of 2010, decided on 17th March, 2011.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3 & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appellants were dismissed from service on the allegation that they were found involved in misconduct and illegal and immoral activities---Charge against the appellants was vague as alleged illegal/immoral activity had not been defined---Law required that charge levelled against civil servant in the disciplinary proceedings should be specific and comprehensive---Civil servant must know as to what particular allegation was levelled against him---Departmental representative had stated that appellants were involved in an incident in which a woman had been hired---Such explanation, did not meet the ends of justice---Appellants should have been informed of that allegation in the show-cause notice and specific roles should have been assigned to them---Charge-sheet showed that allegations of general nature were levelled against the appellants and on those ambiguous allegations no penalty could be imposed upon them---Counsel for Authorities had indirectly conceded that appellants were not informed of the specific charge against them---Such being the factual position, the entire proceedings were of no legal consequence--Impugned orders of dismissal from service passed against the appellants were set aside and they were reinstated into service, in circumstances.

Fazal Qadir Qureshi for Appellants.

Liaqat Ali, Sub-Engineer and Zulfiqar Ali Shah, Head Clerk Garrison Engineer Army, as D.R.

Date of hearing: 17th. March, 2011.

2012 P L C (C.S.) 189

[Federal Service Tribunal]

Before M.A. Aziz and Farrakh Qayyum, Members

Mst. SAJIDA SHAIKH

Versus

DEPUTY POST MASTER GENERAL, NORTHERN SINDH CIRCLE POSTAL SERVICES, HYDERABAD and others

Appeal No.24(K)(CS) of 2010, decided on 10th January, 2011.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5, 6 & 10--Service Tribunals Act (LXX of 1973), SA---Dismissal from service---Dispensing with regular inquiry---Major penalty of dismissal from service .was imposed on appellant,, on certain allegations including forgery, after issuing her show-cause notice but dispensing with the regular inquiry---Validity---Allegations levelled against the appellant having been denied by her, holding of regular inquiry was a must; in which the whole evidence against the appellant was to be brought on record after her participation and cross­examination---Fact finding inquiry was made basis for imposing penalty which could not be a substitute for regular inquiry---Appellant having already undergone a punishment by way of long drawn domestic inquiry as well as proceeding in the Service Tribunal, it would not be in the fitness of the things to again drag the appellant into de novo . enquiry, which was against the interest of justice---Impugned orders which were in violation of the mandate of law, were set aside and the authorities were directed to reinstate the appellant in service with all consequential benefits.

2009 SCMR 329 and 2009 SCMR 339 ref. Sanaullah Noor Ghauri for Appellant.

Arshad Khan Tanoli for Respondents along with Departmental Representative

Ejaz Nabi, Assistant Superintendent for State.

Date of hearing: 6th January, 2011.

2012 P L C (C.S.) 197

[Federal Service Tribunal]

Before Sayed Mehar Hussain Shah and M.A. Aziz, Members

Syed ABRAR HUSSAIN

Versus

DEPUTY INSPECTOR-GENERAL, PAKISTAN RAILWAYS POLICE, LAHORE and another

Appeal No.232(K)(CS) of 2006, decided on 26th February, 2011.

Removal from Service (Special Powets) Ordinance (XVII of 2000)---

----Ss. 2(b), 3, S, 6 & 10---Service Tribunals Act (LXX of 1973), S.4---Imposition of minor punishment of stoppage of increments for two years---Allegation against the appellant was that he had submitted direct application to the Inspector General of Police for his transfer from place 'K' to place 'M', without observing proper channel, which amounted to breaking the chain of command and was an act of misconduct---Act of a person which was prejudicial to the good order or service discipline or unbecoming of an officer and gentleman, was definitely a `misconduct', but mere sending the representation by a subordinate directly to a senior officer, was not an act which could be treated as such---Impugned order was set aside, in circumstances.

2004 PLC (C.S.) 438; 2008 PLC (C.S.) 593; 2009 PLC (C.S.) 19; 2006 SCMR 846; 1994 PLC (C.S.) 713; 1981 PLC (C.S.) 501; 2006 SCMR 104 and 2008 SCMR 1507 ref

Miss. Rashida Khatoon v. Secretary, M/o Industries and Production and 3 others 2008 SCMR 1507 rel

Sanaullah Noor Ghouri for Appellant.

Naveed Saghar, associate of Syed Tauqir Hassan for Respondents along with Departmental Representative Javed Amin, PC for Respondents.

Date of hearing: 19th October, 2011.

2012 P L C (C.S.) 203

[Federal Service Tribunal]

Before Moazzam Hayat and Farrakh Qayyum, Members

NOOR-UL-KHITAB

Versus

ELECTION COMMISSION OF PAKISTAN through Chief Election Commissioner and another

Appeal No,786(P)CS of 2010, decided on 5th March, 2011.

Civil Servants Act (LXXI of 1973)--

----S. 18---Service Tribunals Act (LXX of 1973), S.4---Leave, entitlement to---Appellant had been selected by the United Nations for posting abroad---Such posting was ratified by the authorities when ex-Pakistan leave was granted to the appellant for 300 days---When the election in connection of which he was posted abroad were postponed, appellant applied for extension in leave by 250 days, but his application was rejected---Validity---Authorities should have granted extension as appellant had completed 22 years of service and he had sufficient leave to his credit and he had not gone abroad without permission---Appellant was also serving the United Nations of which Pakistan was a member---All such considerations were ignored by the authorities in refusing leave to the appellant---Impugned order was accordingly set aside---Authorities, in their written objections had submitted that appellant was directed not to get in touch with any agency, but despite that he filed appeal in the Service Tribunal---No undertaking/contract was valid or legal which would prevent a person from seeking remedy in a court of law---If there was any such agreement, that would be void ab initio---Right to get rights protected through court of law, was fundamental and guaranteed by the Constitution---Authorities could not direct the appellant not to file appeal in the Service Tribunal to get relief---Appeal was accepted and authorities were directed to grant extension in leave by 250 days to the appellant.

M. Shoaib Razzaq for Appellant.

Mian M. .Arshad Javed for Respondents with Iftikhar Ahmed, Section Officer as Departmental Representative for Respondents.

Date of hearing: 5th March, 2011.

2012 P L C (C.S.) 209

[Federal Service Tribunal]

Before Abdul Ghani Shaikh, Chairman and Sayed Mehar Hussain, Member

ABDUL HAMEED

Versus

GENERAL MANAGER (OPERATION), PAKISTAN RAILWAY HEADQUARTER OFFICE, LAHORE and another

Appeal No.286(K)CS of 2006, decided on 8th September, 2010.

Civil Servants Act (LXXI of 1973)

---S. 19--- Removal From Service (Special Powers) Ordinance (XVII of 2000), Ss.3 & 10---Service Tribunals Act (LXX of 1973), S.4---Withholding pensionary benefits---Appellant retired from service on attaining the age of 60 years, but his pensionary benefits were withheld by impugned order on ground that a criminal case was pending adjudication against the appellant-Validity-Pensionary benefits of the appellant were his vested right and authorities had no right to recover any amount outstanding against a retired employee from his pension without issuing him a show-cause notice and giving him an opportunity to defend himself---Nothing was on record to show that any notice was sent to the appellant---Pension of appellant could not be stopped---Impugned order whereby pensionary benefits of the appellant were withheld, was . set aside, with direction to the authorities to pay the pension to the appellant within a period of one month.

2001 PLC (C.S.) 991; 2003 PLC (C.S.) 1376; 2005 PLC (C.S.) 4; 1985 PLC (C.S.) 91; 2004 SCMR 656 and 2006 PLC (C.S.) 617 ref

2002 PLC (C.S.) 1159; 2007 PLC (C.S.) 691; 2005 PLC (C.S.) 1439 and PLD 2007 SC 35 rel

Sanaullah Noor Ghauri for Appellant

Departmental Representative Zahoorul Hassan for Respondents.

Date of hearing: 31st August, 2010

2012 P L C (C.S.) 214

[Federal Service Tribunal]

Before Moazzam Hayat and Farrakh Qayyum, Members

MUHAMMAD MANSHA and 4 others

Versus

FEDERAL BOARD OF REVENUE through Chairman and another

Appeals Nos.1425, 1432 to 1435(R)CS of 2010, decided on 4th February, 2011.

Civil Servants Act (LXXI of 1973)7--

----S. 9---Service Tribunals Act (LXX of 1973), S.4---Promotion against promotion quota---Thirty seven posts of Inspectors were sanctioned for Model Customs Collectorate, which posts were to be filled in the ratio of 50% by direct appointment and 50% by promotion of eligible staff of said Model Customs Collectorate---Grievance of the appellants was that posts were not filled up in accordance with 50% ratio as transferees from other departments had been adjusted against promotion quota posts whereas their adjustment should have been made against direct quota posts---Central Board of Revenue, S.R.O. dated 5-1-1977 notified method of appointment of Inspectors in Central Excise and Customs Department, whereby 50% of the posts in the Central Excise and Customs Department would be filled by promotion and remaining 50% would be filled, by direct recruitment, provided that if a suitable person was not available for promotion within the department concerned the vacancy would be filled by transfer---Model Customs Collectorate, being an independent Establishment neither could be burdened with nor made to carry the liability of appointment against direct or promotion quota posts of other Collectorate or their appointees---Said rule had to be followed independently, while filling up or making appointments of Inspectors in Model Customs Collectorate---Posts of Inspectors in said Collectorate could not be adjusted or filled up on the basis of the manner of appointment of the transferees of other Collectorate---Argument of the authorities that since the transferred Inspectors had been promoted in their respective Collectorate by way of promotion, they had to be adjusted against promotion quota posts of Model Customs Collectorate, could not be agreed to---Inspectors once promoted, could' not be tagged as "Promoted Inspectors" while considering their future postings or promotees as done in the present case---Once a civil servant was, appointed on regular basis against a post whether by promotion or any other manner prescribed under the relevant Rules he/she would become a member of the cadre for all practical purpose---Promotion quota of Model Customs Collectorate, would be calculated accordingly and .would be filled up from amongst qualified staff by the relevant authority under prescribed rules/procedure---If any promotion quota post would remain vacant, that could be, temporarily filled up by way of transfer as provided in the Rules and process would be completed by the department within 3 months.

Saeed Ahmad Zaidi for Appellants.

Muhammad Rafique for Respondents.

Date of hearing: 9th January, 2011.

2012 P L C (C.S.) 246

[Federal Service Tribunal]

Before Abdul Ghani Shaikh, Chairman and Sayed Mehar Hussain Shah, Member

ABDUL RAFEEQ MUGHAL

Versus

GENERAL MANAGER (OPERATIONS), PAKISTAN RAILWAYS and 3 others

Appeal No.10(K)(C.S.) of 2005, decided on 18th August, 2010.

Civil Servants Act (LXXI of 1973)---

----S. 12---Service Tribunals Act (LXX of 1973), S.4---Removal from Service (Special Powers) Ordinance (XVII of 2000), Ss.3, 5, 6 & 10---Reversion to lower grade---Dispensing with the regular. inquiry---Appellant while serving as Assistant Foreman was served with show-cause notice with statement of charges alleging therein that he had misappropriated Railway material costing Rs.18, 000---Regular inquiry had been dispensed with without indicating any plausible reason in the show-cause notice---Validity---Major penalty could not be imposed upon accused official, without holding regular departmental inquiry, when charges were denied by him---Report of preliminary inquiry could not take place of regular inquiry---Impugned order was set aside with direction that appellant be restored to his original position and case was remanded to the department for conducting de novo disciplinary proceedings by adopting the prescribed procedure under the law---Disciplinary proceedings would be initiated and completed preferably within a period of 120 days---Question of benefits would depend on the outcome of fresh proceedings.

2008 PLC (C.S.) 593; 2004 PLC (G.S.) 438; 2007 SCMR 152; 2009 SCMR 339 and 2005 TD (Service) 423 ref.

NLR 2002 (Service) 170 and 2002 PLC (C.S.) 243 rel. Sanaullah Noor Ghauri for Appellant.

Zahoorul Hassan Departmental Representative for Respondents. Date of hearing: 16th August, 2010.

2012 P L C (C.S.) 277

[Federal Service Tribunal]

Before Moazzam Hayat and Farrakh Qayyum, Members

SOHAIL KHAN

Versus

INSPECTOR-GENERAL OF POLICE, ISLAMABAD and another

Appeal No.74(R)CS of 2011, decided on 28th February, 2011.

Punjab Police Efficiency and Discipline Rules, 1975--

4(a)---Service Tribunals Act (LXX of 1973), S.4---Penalty of forfeiture of two years' approved service---Appellant who was Operator Constable, was awarded penalty of forfeiture of two years approved service, on the charges that he while deployed as operator with a senior officer, refused to obey the official duty; that he left the official duty without intimation or lawful permission of the officer; that at one time he opened the fire with official pistol during official duty and that he hesitated to .obey the orders of seniors, which showed his ill mentality, disobedience, irresponsible and indisciplined attitude---Appellant was.. taken to another city by the official who was selected for training he was not supposed to accompany her during the period she remained in the institute for training---Charge that appellant had refused to perform duty or was reluctant to perform duty at the other station, was not legally warranted---Appellant, left for station of posting after seeking permission from the official and was replaced by other operator--Appellant could not be disbelieved in that regard, especially when no regular inquiry had been held, wherein the truthfulness of his statement could be verified---Charge of firing by the appellant having been resolved by Superintendent of Police, same could not be framed against him---Appellant had not committed any illegality and had not violated any rule---Lawful penal order having not been passed against the appellant, penalty awarded to him vide impugned order, was set aside.

Muhammad Aftab Alam Raza for Appellant.

Sajid Abbas, Inspector (Legal) as D.R.

Date of hearing: 28th February, 2011.

2012 P L C (C.S.) 280

[Federal Service Tribunal]

Before Sayed Mehar Hussain Shahand M.A. Aziz, Members

AFTAB MEHDI

Versus

FEDERATION OF PAKISTAN through Prime Minister and another

Appeal No.60(K)CS of 2008, decided on 27th February, 2011.

Removal from Service (Special Powers) -Ordinance (XVII of 2000)---

---Ss. 3, 5, 6 & 10---Service Tribunals Act (LXX of 1913), S.4--Removal from service of Railways employee---Charge-sheet was issued/signed by Secretary/Chairman Railways, which was against the provisions of the Removal from Service (Special Powers) Ordinance, 2000; as it was required to be issued by the Inquiry Officer/ Committee---Entire action, based on said charge-sheet, in circumstances, was nullity in the eyes of law---Questionnaire provided to the appellant by the Inquiry Committee which was also not permissible in law---Allegations having' not been proved, another charge-sheet along with the statement of charges was issued to the appellant, which was signed/issued by the Secretary/Chairman Railways with the same set of allegations---Inquiry Committee was appointed which concluded the inquiry in the same fashion as was done by earlier Committee---None of other charges were proved---Inquiry Committee held the appellant guilty of one charge only and exonerated from the other charges---Second Inquiry Committee was not required to be appointed---Punishment of removal from service did not commensurate with the act of the appellant; it would be in the interest of justice, if removal of the appellant was modified and converted into stoppage of his increment for one year---Authorities were directed to reinstate the appellant in service, in circumstances.

Sanaullah Noor Ghouri for Appellant.

Hussain Bux Saryo for Respondent along with Departmental Representative Zahoorul Hassan, UDC for Respondent

Date of hearing: 30th December, 2010.

2012 P L C (C.S.) 613

[Federal Service Tribunal]

Before Moazzam Hayat and Mrs. Neelam S. Ali , Members

MUHAMMAD NASEEM KHAN and others

Versus

ACCOUNTANT-GENERAL PAKISTAN (REVENUE), ISLAMABAD and another

Appeals Nos.1446(R)CS, 1447(R)CS and 1448(R)CS of 2011, decided on 15th December, 2011.

Civil Servants Act (LXXI of 1973)---

----S. 19---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Art.25---Claim for increase in commuted pension---Discrimination---Pension of appellants/pensioners, on retirement was fixed, but 50% of their pension was deducted as a result of commutation---Pensioners were paid fifteen years pension in lump sum and remaining 50% of the pension was paid to them every month---Periodical increases allowed to the appellants were being received by the appellants every month---When the commuted period of pension expired, authorities did not pay them the commuted pension with periodical increases---Request of the appellants for refixation of their pension and payment of arrears was rejected---Validity---High Court, in another case had laid down a principle that the pensioners were entitled to increase of their commuted pension on completion of period of commuted pension---Judgments of the Supreme Court, High Court and the Service Tribunals, were to be extended, even to the non-litigating parties---Appellants, in circumstances, were justified in making prayer for the same relief, which had been given in said other case---If the appellants, were not given the same relief, that would tantamount to discrimination---When some officers would be getting the benefit of increase in pension whereas the other would not get the same relief, that would create an anomalous situation attracting the well established principle of law that there could be no discrimination, and all the persons were entitled to equal protection of law, as guaranteed by Art.25 of the Constitution---Authorities, were directed to determine the pension of the appellants from the date of restoration of their commuted pension at the rate of which they were drawing 50% remaining pension; arrears would also be paid to them---Appellants, however, would not be entitled to claim arrears for the period prior to restoration of their commuted pension.

A.A. Zuberi v. Additional Accountant General Pakistan Revenue, Lahore 2010 PLC (C.S.) 1211; 2011 PLC (C.S.) 580; PLJ 2011 Tr.C. (Services) 165 and Hameed Akhtar Niazi's case 1996 SCMR 1185 rel.

A.A. Zuberi v. Additional Accountant-General Pakistan Revenue, Lahore 2010 PLC (C.S.) 1211 ref.

G.N. Shahid for Appellants.

Ghulam Mehboob Khokhar for Respondents with Butay Khan Kowkab, Assistant Accounts Officer, Accountant-General, Pakistan Revenue, Islamabad and Tahir Wazir, Senior Auditor, Accountant-General Pakistan Revenue Sub-Office, Lahore as departmental representative for Respondents.

Date of hearing: 15th December, 2011.

2012 P L C (C.S.) 1323

[Federal Service Tribunal]

Before Moazzam Hayat and Mahmood Salim Mahmood, Members

Mrs. WAJIHA MOHSIN SHAHZAD

Versus

NATIONAL HIGHWAY AUTHORITY through Chairman and another

Appeal No.38(R)(CS) of 2012, decided on 25th May, 2012.

National Highway Authority (Efficiency and Discipline) Rules, 1995---

----R. 4---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appellant serving as Assistant Director, submitted application for grant of two years leave; her application was recommended by Director (Personnel), but, the appellant without ascertaining the result of her application for leave and without waiting for sanction of leave left for a foreign country---Appellant was proceeded against under the National Highway Authority (Efficiency and Discipline) Rules, 1995 and was awarded the penalty of dismissal from service---Validity---Being a civil servant, it was obligatory for the appellant to have waited for sanction of leave applied for, but she left for foreign country without sanction of leave---Recommendation of application of the appellant by the Director (Personnel), was only proposal and not a sanction order---Appellant could not leave the country or the place of her duty without sanction of leave---Mere submission of application for leave by the employee to her department, would not mean that leave had been granted in her favour---Appellant was duty bound to inquire from the department about the fate of her request for grant of leave---Appellant had committed a serious misconduct for which she deserved major penalty---As the country needed services of qualified and talented persons, if the penalty of dismissal from service, awarded to the appellant, was upheld, appellant being qualified, would not be in a position to find service in any Government Department---Country, in circumstances, would be deprived of her service---Penalty of dismissal from service, was converted into her removal from service, in circumstances.

2009 SCMR 1125 rel.

Abdul Rashid Saqib for Appellant.

Fiaz Ahmad Jandran for Respondents.

Date of hearing: 25th May, 2012.

2012 P L C (C.S.) 1330

[Federal Service Tribunal]

Before Moazzam Hayat and Mrs. Neelam S. Ali, Members

MIAN MUHAMMAD and others

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Secretary and another

Appeals Nos.1056(R)(CS) to 1065(R)(CS) of 2011, decided on 29th May, 2012.

(a) Constitution of Pakistan---

----Arts. 189 & 190---Binding force of decisions of Supreme Court on other courts and action in aid of Supreme Court---When a principle of law was enunciated by the apex court, it had to be followed in letter and spirit by all the courts under Art.189 of the Constitution---All the authorities, under Art.190 of the Constitution, had to act in aid of the Supreme Court---Cumulative effect of Arts.189 & 190 of the Constitution, was that the law given by the apex court had to be followed by the Federal Public Service Commission also, even if it's head had been a former Judge of the Supreme Court---Larger interest of the officials, could never be a ground for not following the law laid down by the apex court.

(b) Civil Servants Act (LXXI of 1973)---

----S. 25---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.3(2)---Retrospective effect to any amendment---Scope---Employee of Federal Public Service Commission---Recruitment Rules in question were framed under Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 while Rules did not empower the competent Authority to give retrospective effect to any amendment---When the powers to amend retrospectively were not given in the parent Rules, same powers could not be given in the subordinate Rules framed under the main Rules---No authority was vested in the Federal Public Service Commission (employer) or any of its employee to change the Service Rules of the employee to his disadvantage---Even the Members of the Commission and representative of the officials could not authorize change in Service Rules applicable to the employee---Rules in question did not adversely affected the employee, same would be applied to the employees who had joined the Commission after such amendment.

M. Owais for Appellants.

Farooq Iqbal Khan with Pir Muhammad Ishaque, Legal Adviser as departmental representative for Respondents.

Date of hearing; 29th May, 2012.

2012 P L C (C.S.) 1339

[Federal Service Tribunal]

Before M.A. Aziz and Muhammad Iqbal Shaikh, Members

KHALID LATIF BUTT

Versus

FEDERAL BOARD OF REVENUE through Chairman, Ministry of Finance, Islamabad and 3 others

Appeal No.178(L)CS of 2010, decided on 4th June, 2012.

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b)(ii) & 5---Service Tribunals Act (LXX of 1973), S.4---Authority, in the disciplinary proceedings against the appellant, imposed major penalty of "compulsory retirement" from service with immediate effect---Service Tribunal, on appeal, modified the punishment imposed on the appellant to "compulsory retirement" with the direction that the period that appellant remained absent from duty be treated as having been spent on medical leave and counted towards pension---Commissioner ordered to implement the order of the Service Tribunal---Appellant filed appeal before the Tribunal praying that order of the Commissioner be set aside and he be reinstated in service with all consequential benefits and that authorities be directed to allow the appellant to draw amount/salaries from his Bank Account---Validity---Service Tribunal had only modified the penalty to the extent that the period of absence of appellant from duty was treated as having been spent on medical leave; and was to be counted towards pension; while penalty of compulsory retirement was maintained---Action taken by authorities against the appellant after judgment of the Tribunal, was neither a matter relating to the terms and conditions of service of the appellant, nor a matter relating to disciplinary proceedings---Appeal filed by the appellant being not maintainable, was dismissed, in circumstances.

2006 SCMR 434; 1994 SCMR 2232; 2008 PLC (C.S.) 961; 2007 PLC (C.S.) 1145 and 2008 SCMR 598 ref.

Mian Jaffar Hussain for Appellant.

Abrar Ahmad for Respondents.

Date of hearing: 10th May, 2012.

2012 P L C (C.S.) 1353

[Federal Service Tribunal]

Before Moazzam Hayat and Mehmood Salim Mahmood, Members

Syed HAYAT SHAH

Versus

SECRETARY, MINISTRY OF NARCOTICS CONTROL, GOVERNMENT OF PAKISTAN, ISLAMABAD and another

Appeal No.2209(R)CS of 2011, decided on 16th May, 2012.

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5 & 10---Service Tribunals Act (LXX of 1973), S.4---Dismissal from service---Appellant was dismissed from service after charge-sheeting him and holding inquiry against him on ground that he had accepted illegal gratification---Charge against the appellant was very serious---Full-fledged inquiry was held against him in which he was given every opportunity to cross-examine the witnesses---Legal and codal formalities had fully been observed by the authorities in the case---In view of the gravity of the charges, proved in the inquiry; and also for the reason that the appellant was a fugitive from justice, appellant was not entitled to any relief since he was himself running away from justice.

PLD 1978 SC 102 rel.

M. Owais for Appellant.

Ch. Muhammad Zahid with Amir Mukhtar, Assistant as Departmental Representative for Respondents.

Date of hearing: 16th May, 2012.

2012 P L C (C.S.) 108

[Gilgit-Baltistan Chief Court]

Before Sahib Khan and Muzaffar Ali, JJ

MUHAMMAD HASSAN and 2 others

Versus

PROVINCIAL GOVERNMENT through Chief Secretary G.B. Gilgit and 5 others

Writ Petition Na.38 of 2009, decided on 15th June, 2011.

Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009--

---Art. 71---Civil service---Appointment and promotion---Jurisdiction of High Court---Petitioners had been appointed in the year 1984 as Sub-Engineers and since their appointment, they were working at the same post without any promotion---Respondent was appointed as Assistant Engineer in the year 2005 on the basis of work charge---Permanent post of Assistant Engineer BPS-9 was created in the year 2009, which was to be filled by departmental promotion as per Rules---Authorities adjusted the respondent in utter violation of law---Case was of a simple promotion of one out of the Sub-Engineers awaiting for promotion to post of Assistant Engineer for years hugging the seniority list and fitness record---Authorities, instead of promoting most senior Sub-Engineer taking care of his fitness to be promoted, used the terms as "adjustment", "change of nomenclature" and "re-designation" for awarding the respondent with the post at the cost of the petitioners' right in utter violation of relevant rules, procedure and law---Impugned appointment orders, were declared void and without lawful authority and post in question was declared vacant and authorities were directed to fill the same by promotion under the relevant rules, keeping in view the seniority and fitness among the awaiting Sub-Engineers of the department.

Anisullah Khan and Abdul Hameed Haider for Petitioners.

Asstt. A.-G. for Respondents Nos.1 to 5.

Yawar Hussain for Respondent No.4.

Muneer Ahmed for Respondent.

Date of hearing: 15th June, 2011.

2012 P L C (C.S.) 140

[High Court (AJ&K)]

Before Munir Ahmed Chaudhry, J

TAHIR MEHMOOD

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR

through Chief Secretary and 3 others

Writ Petition No.95 of 2011, decided on 16th December, 2011.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Civil service---Ad hoc appointment---Petitioner was appointed on ad hoc basis and appointment order mentioned that same was on ad hoc basis for six months and competent authority could terminate the ad hoc appointment without issuing any notice at any time---Said conditions were mentioned in all of the orders regarding the extension of the basic order of ad hoc appointment---Ad hoc appointment would create no right and such like Officer would not come in the ambit of a 'civil servant'---Petitioner had no locus standi to file a writ petition on the basis of his being an ad hoc appointee.

Raja Raza Ali Khan for Petitioner.

Sardar Abdus Sami Khan for Respondents.

2012 P L C (C.S.) 151

[High Court (AJ&K)]

Before Munir Ahmed Chaudhry, J

AFTAB GULL

Versus

DEPUTY COMMISSIONER, DISTRICT BAGH and 16 others

Writ Petition No.223 of 2009, decided on 17th December, 2011.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Civil service---Appointment---Petitioner had completed the training for "Candidate Patwari"---Certificate regarding completion of the training had been appended with writ petition---Petitioner was appointed as Patwari on contract basis and was not allowed to sit in the test and interview for the post of Patwari as a successful candidate his name having not been included in the list of successful candidates---Validity---Authorities were bound by provision of law to allow the petitioner to compete for test and interview as a successful candidate---Petitioner did not challenge the validity of appointment of other persons as Patwaris; he had claimed relief for himself to be treated as a successful candidate and to be allowed to compete for the test and interview for the post of Patwari---Version of petitioner had not been denied and rebutted by the authorities---Authorities were directed to treat the petitioner as a successful candidate for test and interview for the post of Patwari and to give him a chance to appear in the test and interview to be conducted in future.

Kh. Muhammad Nasim for Petitioner.

Nemo for Respondents.

2012 P L C (C.S.) 157

[AJ&K (High Court)]

Before Munir Ahmed Chaudhary, J

Ch. MUHAMMAD FAROOQ

Versus

COMMISSIONER REVENUE, AZAD JAMMU AND KASHMIR, MUZAFFARABAD DIVISION and 3 others

Writ Petition No.271 of 2006, decided on 17th December, 2011.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Civil service---Appointment---Petitioner in response to an advertisement with regard to appointment of Naib Tehsildar, applied for the same---Senior Member Board of Revenue and Commissioner nominated him for training---Petitioner completed the training and a certificate regarding completion of training was also issued in his favour---Despite completing training, petitioner was not appointed as Naib Tehsildar---Validity---Petitioner had sought writ in the nature of mandamus to direct the authorities to appoint him against the post on the basis of completion of training for said post---Recommendations for training by the petitioner were: firstly that the petitioner had to complete the training on his own expenditures; secondly, that the department would not be bound to appoint the petitioner on the completion of the training and thirdly, that the petitioner was bound to qualify the examination conducted by the Public Service Commission---Record showed that petitioner had not competed for any examination after completion of his training---Petitioner could not claim to be appointed on post in question as a right on the basis of departmental training---Government or the Board of Revenue was not bound to provide job on basis of departmental training---Every candidate for any post who had completed the required training, had to compete for the examination conducted by the department or Public Service Commission for that post---Petitioner, in circumstances, was not entitled for any relief on the basis of departmental training only---Petitioner had filed writ petition before the High Court after one year and fourteen days after issuance of certificate regarding completion of training---Writ petition, otherwise filed after a considerable delay was not maintainable being hit by the doctrine of laches.

Ch. Muhammad Kaleem Afsar for Petitioner.

Nemo for Respondents.

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2012 P L C (C.S.) 429

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

KHURSHID HUSSAIN

Versus

AZAD GOVERNMENT through Chief Secretary, Muzaffarabad and 3 others

Writ Petition No.1963 of 2011, decided on 14th January, 2012.

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Civil service---Retirement after attaining age of superannuation---Dispute regarding date of birth---Authorities intended to retire the petitioner with effect from 15-1-2012 on attaining age of 60 years, on the basis of date of birth as was written in his Service Book, which was 15-1-1952---Petitioner had claimed that his date of birth was 15-1-1956 and not 15-1-1952 as was mentioned in his service record---Service Book mentioned the date of birth of petitioner as 15-1-1952 which was duly signed by the petitioner and there was no discrepancy in the relevant column---Petitioner on the one hand had stated that his date of birth was 15-1-1956, and on the other he had produced Service Book showing his date of birth as 15-1-1952, which was a contradictory stand and had rendered the version of the petitioner as doubtful---Petitioner, in circumstances, having not come to the court with clean hands, was not entitled to any relief under extraordinary writ jurisdiction---Petitioner was inducted in service as Head Constable on 20-4-1971 and was promoted upto the rank of Deputy Inspector-General of Police---Petitioner during 40 years of service had never solicited relief for correction of his date of birth which was written in his Service Book as 15-1-1952---Writ petition filed by the petitioner was attracted by laches extended over decades---Judicial consensus was that civil servant should solicit correction of his date of birth within two years---Writ petition was dismissed.

Sardar Muhammad Latif Khan and others v. Ch. Muhammad Latif and others 1999 PLC (C.S.) 69; Azad Government and another v. Abdul Kabir Qureshi and others 1995 PLC (C.S.) 46; Ch. Muhammad Din Kausar v. AJ&K Government and 4 others 2004 PLC (C.S.) 897; Alamdar Hussain v. Inspector-General of Police, Punjab and others 2003 SCMR 1105; Qamaruddin v. Pakistan through Secretary Establishment Division, Islamabad and another 2007 SCMR 66 and Sh. Mumtaz Ali alias-Mumtaz Alam v. Government of the Punjab 1991 PLC (C.S.) 1202 rel.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ jurisdiction, exercise of---Scope---Disputed question of facts which needed detailed inquiry and evidence, could not be investigated in writ jurisdiction.

Kh. Muhammad Naseem for Petitioner.

Asghar Ali Malik for Respondents.

2012 P L C (C.S.) 450

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Professor MUHAMMAD HANIF KHAWAJA

Versus

UNIVERSITY OF AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 2 others

Writ Petition No.79 of 2010, decided on 5th January, 2012

Azad Jammu and Kashmir Medical Allowance Rules, 1982---

----Rr. 6 & 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Claim for payment of expenses incurred on treatment at a private hospital---Petitioner, a permanent employee of university, had severe attack of high blood pressure, was admitted in State Institution of Cardiology, where he was provided preliminary treatment---Left part of the body of the petitioner having been paralyzed, on advise of Doctors of said Institution, the petitioner was shifted to another Federal Government Institution of Medical Sciences in Pakistan, for treatment---Petitioner having been shifted to the said institution on Sunday, no Doctor was available in the said institution to treat the petitioner---To avoid any risk by waiting of any doctor, for a day and in view of intensity of the disease of the petitioner, it was decided to shift the petitioner in emergency to a private Hospital for treatment---Petitioner remained under treatment in said private hospital for seven days---Bills of treatment at the private hospital were sent to Vice-Chancellor of the University concerned for making payment---University refused payment of the bills with the observation that the same were tampered which could not be relied upon and Medical Committee of Syndicate finally rejected the bills---Validity---Matter though raised questions of facts, but same were clear and did not require detailed investigation of fact and could be resolved in writ petition---Petitioner had a right to get treatment being a retired employee of University of Azad Kashmir which right could not be abolished on the point that he availed his treatment in a private hospital in emergency---Payment of bills in question, was refused by the authorities on the sole objection that bills were tampered---Concerned Medical Committee/Syndicate, was bound to verify the said bills or to have fresh bills from the concerned private hospital---Authorities had acted in violation of the Rules governing the matter---Petitioner had submitted an affidavit in support of his version with his writ petition, and the authorities having not submitted any such affidavit in support of their version, affidavit of the petitioner was sufficient proof of his version as it had not been rebutted by cogent evidence---Petitioner, was declared entitled to the medical facilities---Authorities were directed to pay the bills for the treatment of the petitioner in private hospital.

1993 SCR 88 rel.

Raja Fazal Hussain Rabbani v. Vice-Chancellor AJ&K University Writ Petition No.159 of 1999 and AJ&K University v. Professor Muhammad Aslam Khan Civil Appeal No.60 of 2004 ref.

Muhammad Idrees Mughal for Petitioner.

Farooq Hussain Kashmiri for Respondents.

2012 P L C (C.S.) 462

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Dr. MUHAMMAD AMIN

Versus

AZAD JAMMU AND KASHMIR GOVERNMENT through Chief Secretary, Muzaffarabad and 4 others

Writ Petition No.159 of 2009, decided on 6th January, 2012.

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Maintainability---Civil service---Contractual appointment---Removal from service---Petitioner was appointed as Chairman of Development Authority on contractual basis for three years, but he was removed from service before expiry of said contractual period without hearing him; issuing notice and making any allegation against him for his earlier removal---Maintainability of writ petition had been challenged by the authorities on the ground that matter in question pertained to the terms and conditions of service, which was exclusive jurisdiction of Service Tribunal---Validity---Remedy of writ petition was permitted in cases involving contract between the person and the State, because it was more efficacious and speedy remedy as compared a civil suit---Petitioner, in circumstances, could claim remedy by invoking writ jurisdiction of High Court---Notification through which the petitioner was removed before expiry of contractual period, had reflected that the petitioner was not heard before his removal---Maxim 'audi alteram partem' was to be read into the relevant law, unless its application was excluded by express words---Authorities were bound not to remove the petitioner before expiry of contractual period of three years, but the employee was removed ignoring and violating the provisions of law---Order of removal was set aside and petitioner was declared entitled to receive salary, privileges and all other benefits for the remaining period of contract of his service.

PLD 1998 Lah. 665; Messrs Pacific Multi-national (Pvt.) Ltd. v. Inspector-General of Police Sindh PLD 1992 Kar. 283; Tahir Mehmood Khan v. Azad Government and others 2006 SCR 382; Muhammad Sharif Khan v. Mirza Fazal Hussain and others 1993 SCR 88 and Mirza Aslam Baig v. Sageer Iqbal PLD 1988 SC (AJ&K) 24 rel.

(b) Natural justice---

----Principles of---It was duty of the courts to act fairly and with due regard to the regard to the principles of natural justice, unless specifically exempted---Maxim 'audi alteram partem' extends to all proceedings, which could affect the persons or property or other rights of the parties concerned in dispute---An order passed without affording an opportunity of hearing to an affected party, could not be considered a valid order in the eyes of law.

Khalid Rasheed Chaudhary for Petitioner.

Muzaffar Ali Zafar, Addl. A.-G. for Respondents.

2012 P L C (C.S.) 710

[High Court (AJ&K)]

Before M. Tabassum Aftab Alvi, J

Raja ISHTIAQ AKBAR and others

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and others

Writ Petitions Nos.1485 of 2010, 101, and 760 of 2011, decided on 7th January, 2012.

(a) Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----Ss. 4 & 23---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, Rr.16, 17 & 23---Making of appointment against a civil post---Services in Azad Jammu and Kashmir, were regulated by Act of Assembly which had been promulgated on the strength of S.49 of Azad Jammu and Kashmir Interim Constitution Act, 1974---Section 4 of the Azad Jammu and Kashmir Civil Servants Act, 1976 postulated that the appointment against a civil post in connection with the affairs of the Government, would be made in the prescribed manner by the Government, or by a person authorized by it in that behalf---Section 23 of Azad Jammu and Kashmir Civil Servants Act, 1976, had authorized the Government to make rules for carrying out the purpose of said Act---Government, in exercise of said powers, had made rules known as the Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977; Part-II of said Rules had prescribed the method and manner of appointment to the post in various grades, whereas Part-III of said Rules containing Rr.16 & 17 prescribed the manner for initial appointment to the post of grade-16 and above.

(b) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R. 23, Part-IV---Manner of making ad hoc appointments---Rule 23, Part-IV of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, postulated the manner of making ad hoc appointment---Said Rules had made it clear that even ad hoc appointment, could not be made in an arbitrary manner---First condition for making an ad hoc appointment was that the same would be made in the public interest; second condition was that before making such appointment the appointing Authority would forward requisition to the Selection Authority and appointment was subject to further conditions listed in sub-rules (1) to (5) of R.23---Said conditions were mandatory and could not be ignored at the time of making ad hoc appointment---Proviso to R.23, had ordinary effect which commanded that ad hoc appointment would not confer any right to the persons so appointed in the matter of regular appointment for the same post, nor the service would be counted towards seniority in the grade---Regularization of ad hoc Appointment Act, 1992, was unconstitutional and all the appointments made on the basis of the said Act, were declared as ad hoc appointments and were ordered to be made through the process of Public Service Commission.

Arfan Hameed SDO Mirpur and 42 others v. Secretary Education and others 2005 CLC 564; Azad Jammu and Kashmir Government and 4 others v. Messrs Spintex Ltd. 1998 PTD 3200; Ch. Abdul Mujeed and others v. Azad Jammu and Kashmir Government and others PLD 2001 AJK 24 and Azad Government and 2 others v. Muhammad Naseer Ch. and 2 others 2010 SCR 186 ref.

Azad Jammu and Kashmir Government and others v. Muhammad Younis Tahir and others 1994 CLC 2339 and Kh. Manzoor Qadir and 5 others v. Azad Government and others 2010 SCR 215 rel.

Sadaqat Hussain Raja for Petitioners (in Writ Petition No.1485 of 2010).

Raja Muhammad Haneef Khan for Respondents (in Writ Petition No.1485 of 2010).

Sardar Muhammad Habib Zia for Petitioners (in Writ Petition No.101 of 2011).

Raja Muhammad Haneef Khan for Respondents (in Writ Petition No.101 of 2011).

Barrister Hamayun Nawaz Khan for Petitioners (in Writ Petition No.760 of 2011).

Raja Muhammad Haneef Khan and Sardar Habib Zia for Respondents (in Writ Petition No.760 of 2011).

Date of hearing: 30th November, 2011.

2012 P L C (C.S.) 959

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., Munir Ahmed Chaudhry and M. Tabassum Aftab Alvi, JJ

Raja SHAH NAWAZ KHAN

Versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 3 others

Writ Petition No.1187 of 2011, decided on 2nd March, 2012.

Azad Jammu and Kashmir Zakat and Ushr Act, 1985---

----Ss. 9(b), 13 & 29-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Establishment of Zakat and Ushr Council and appointment of Chairman of Council---Grant of pay, perks and other privileges was assailed by the Chairman---Respondent authority through notification established Zakat and Ushr Council and appointed the petitioner as Chairman of the Council---Petitioner had contended that as ex-Chairmen were granted pay, perks and other privileges equal to Judge of the High Court, same privileges could be granted to him---Petitioner had claimed that summary in that respect was approved by the Prime Minister, which was lying in the Office of Chief Secretary, who had not taken any step for issuance of formal notification and that during pendency of his writ petition, authorities in collusion with each other issued notification, whereby a lump sum honorarium had been determined and petitioner challenged the vires of said notification for having been issued with malice and contrary to approval of the Prime Minister---Petitioner had urged that as no formal notification had been issued in the light of the approval of the Prime Minister; direction for implementation of said approval of Prime Minister be issued---Main grievance of the petitioner pertained to non-implementation of approval of the Prime Minister, whereby his terms and conditions were allegedly determined---Alleged approval of Prime Minister had revealed that pay and perks as claimed by the petitioner, were never granted to him and he was allowed only privileges of Ex-Chairman---Claim of the petitioner that he was entitled to pay and perks equal to those of Judge of High Court, was repelled, in circumstances---No terms and conditions with regard to payment of salary and other privileges were determined and the matter was pending before authorities---Nothing remained for implementation through writ of mandamus as order sought to be implemented, was no more available---No direction could be issued, in circumstances---Other contention of petitioner that before completion of three years period, he could not be removed from the post of Chairman, was also not maintainable as under amended subsection (4) of S.13 of Azad Jammu and Kashmir Zakat and Ushr Act, 1985, Chairman and other members of the Council not being an ex-officio member, would hold office on discretion of the Government---Appointment of Chairman being subject to pleasure of the Government, petitioner could not claim completion of three years period---Order accordingly.

Mir Abul Hamid v. Azad Government and 2 others 1997 PLC (C.S.) 805; Justice (Rtd.) Qazi Abdul Ghafoor v. Azad Jammu and Kashmir Government 1996 CLC 1556 and Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999 SC 1026 ref.

Bostan Chaudhry v. Audit and Accounts Department and 6 others 2011 SCR 279 rel.

Raja Gul Majeed Khan and Rana Ali Khan for Petitioner.

Sardar M.R. Khan, Addl. A.-G. for Respondents.

2012 P L C (C.S.) 1375

[High Court (AJ&K)]

Before Munir Ahmed Chaudhary, J

Dr. MAZHAR IQBAL TAHIR, CMO BHU

Versus

PROVINCIAL COORDINATOR NATIONAL PROGRAM (FP & PHC) MUZAFFARABAD AJ&K and 4 others

Writ Petition No.143-A of 2011, decided on 9th May, 2012.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Maintainability---Petitioner who had been handed over the charge of District Co-ordinator in addition to his present original posting as Civil Medical Officer had sought protection regarding said additional charge---Additional charge was neither an appointment nor a promotion in the eyes of Rules and Regulations---Authority which handed over the additional charge of any post to any other officer serving on his original post, could also withdraw the same order when it deemed proper---No protection could be claimed regarding additional charge of any post---Petitioner had got no locus standi to file writ petition, which was dismissed, in circumstances.

Ch. Muhammad Ashraf Ayaz for Petitioner.

Muzaffar Ali Zafar, Addl. A.-G. for Respondents.

2012 P L C (C.S.) 1382

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J.

FAZAL-E-RABBI KHAN

versus

AZAD GOVERNMENT throughChief Secretary, Muzaffarabad and 4 others

Writ Petition No.1831 of 2011, decided on 29th May, 2012.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Civil service---Promotion---Appointment of the petitioner as Sub-Engineer was regularized after due process of law in 2006 under Electricity Department Service Rules, 1993 which were amended in 2007---Said Rules provided 15% quota reserved for promotion of Sub-Engineers on the basis of seniority-cum-fitness---Later on vide Notification dated 6-12-2010, petitioner was promoted on current charge basis and on recommendations of the Chairman of Selection Board he was promoted as Assistant Engineer on officiating basis---At time of officiating promotion of the petitioner there were 55 posts of the Assistant Engineers and out of said posts 9 posts fell to the quota of the petitioner's category and cadre---Authorities amended Electricity Department Service Rules, 1993 and according to said amended Rules quota of 15% was decreased to 5%---Case of the petitioner was that he was entitled to be considered under unamended Rules against the quota available and decrease of quota in the amended Rules would not apply to him, because accrued right could not be snatched retrospectively--- Validity--- Petitioner was promoted on officiating basis as Assistant Engineer and he had not invoked the jurisdiction of High Court for issuance of direction to the Authorities for sending his case to the concerned Selection Board and meanwhile Rules had been amended---Petitioner having not challenged the Rules and the quota reserved for persons of his category had also been decreased---Without challenging the legality and propriety of the Rules, the relief sought could not be granted to the petitioner---Case of the petitioner had to be judged in the light of the Rules enforced at the time---Rules which were no more in existence, could not be ordered to the implemented in the case of petitioner.

Muhammad Shafique Awan and others v. AJ&K Government and others Writ Petition No.238 of 2008 and Azad Government and others v. Muhammad Shafique Awan and others Civil PLA No.30 of 2012 distinguished.

Nazakat Abbas and 2 others v. Punjab Public Service Commission through Secretary and another 2006 PLC (C.S.) 221; Pakistan Institute of Human Rights through Muhammad Iftikhar Hussain Rajput v. The State through Chairman, Chief Minister's Task Force and others 2005 YLR 774 and Azad Government of the State of J&K and others v. Haji Summandar Khan and others 1995 MLD 1350 rel.

Abdul Rasheed Abbasi for Petitioner.

Noorullah Qureshi for Respondents.

2012 P L C (C.S.) 1387

[High Court (AJ&K)]

Before Ghulam Mustafa Mughal, C.J., Munir Ahmed Chaudhry and M. Tabassum Aftab Alvi, JJ

Justice (Retd.) Syed MANZOOR HUSSAIN GILLANI and others

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary, Muzaffarabad and others

Writ Petitions Nos.1423 and 1453 of 2010, decided on 28th March, 2012

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1 974)---

----Ss. 42(8), 43-A, 44, Fourth & Fifth Scheds.---Writ petitions---Acting Chief Justice of Supreme Court and Acting Chief Justice of High Court of Azad Jammu and Kashmir, retirement of---Pensionary benefits as Chief Justice granted earlier to such Acting Chief Justices withdrawn by Accountant General for they were not confirmed Chief Justices, thus, re-fixed their pensionary benefits as Judge---Validity ---According to provisions of Fourth & Fifth Schedules of the Constitution, Chief Justice/Judges of Supreme Court and Chief Justice/Judges of High Court would be entitled to same salary, allowances, privileges and pension as would be admissible to Chief Justice and Judges of Supreme Court and High Court in Pakistan respectively---Government of Pakistan through Notification dated 21-6-1999 had granted to one Acting Chief Justice of Pakistan pension and retiring benefits as Chief Justice---Both petitioners had remained Acting Chief Justices and had been granted pensionary benefits as Chief Justices of Supreme Court and High Court by Accountant General after due process of law and same had already been received by them---Neither show cause had been issued to petitioners nor had they been heard before re-fixing their pensionary benefits---Impugned orders issued by Accountant General were contrary to principle of locus poenitentiae---High Court set aside impugned orders for being without lawful authority, arbitrary and capricious---Writ petitions were allowed.

Al-Jehad Trust v. Federation of Pakistan and others PLD 1996 SC 324; Chairman Selection Committee/Principal King Edward Medical College Lahore and 2 others v. Wasif Zamir Ahmad and another 1997 SCMR 15; Accountant General Sindh and others v. Ahmed Ali U. Qureshi and others PLD 2008 SC 522 and Saleh Shah v. Superintendent Jail and others PLD 2009 Pesh. 33 ref.

Malik Zaffar Ali v. Inspector General Police 1995 SCR 234; Pakistan through Secretary, Minister of Finance v. M. Hamayatullah Farooqi PLD 1969 SC 407; Chief Secretary Government of Sindh and another v. Sheer Muhammad Makhdoom and others PLD 1991 SC 973; Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd. Chittagong PLD 1970 SC 439 and The State v. Muhammad Ismail and another 1980 SCMR 268 rel.

Syed Shahid Bahar and Barrister Hamayun Nawaz Khan for Petitioners.

Asghar Ali Malik for Respondents.

Date of decision: 28th March, 2012.

2012 P L C (C.S.) 38

[Islamabad High Court]

Before Iqbal Hameed-ur-Rehman, C.J.

KAMRAN MANZOOR and 5 others

Versus

SECRETARY CABINET DIVISION/ CHAIRMAN and another

Writ Petition No.150 of 2010, heard on 20th April, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Regularization of service---Petitioners, in response to an advertisement applied for the posts of Assistant Directors (EG-02) and after fulfilment of the formal procedure were selected---Advertisement showed that "candidates appointed against the posts, would be initially on probation and on satisfactory performance be regularized"; petitioners were given the impression that they would be regularized on satisfactory performance---Cases of the petitioners for regularization of their services were submitted to the Cabinet Secretary, but were turned down by the competent authority---Petitioners were working for the last about five years and their performance was graded as satisfactory by the department---Such satisfaction of the department was earned by the petitioners through years of labour, hard work and through years of sweat and tail---Petitioners during that period had crossed the age of 30 years and had lost the opportunity of fresh appointment in any government organization---Petitioners' services were required by the department, but their services could not be regularized without undergoing prescribed procedure i.e. conducting of test/interview---High Court considered the matter sympathetically and directed the department to regularize the services of such employees by completing said formalities of appointments without any fresh application---Authorities were directed to consider the case of the petitioners for regularization of their services in accordance with prescribed procedure.

2003 SCMR 291; 2007 CLD 1092; PLD 2006 Lah. 609; PLD 2001 SC 176 and 2010 PLC (C.S.) 665 ref.

Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 rel.

Issac Ali Qazi for Petitioners.

Tariq Mehmood Jahangiri, Dy. A.-G. for Respondent No.1.

Shamshad Ullah Cheema for Respondent No.2.

Date of hearing: 20th April, 2011.

2012 P L C (C.S.) 90

[Islamabad High Court]

Before Riaz Ahmad Khan, J

NAZAR MUHAMMAD QURESHI and 12 others

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Interior, Islamabad

and 5 others

Writ Petitions Nos.2765, 2901, 2887, 2891, 2893, 2840, 2842, 2858, 2859, 2860, 2870, 2873, 2874, 2875, 2876, 2878, 2775, 2628, 2793, 2796, 2808 and 2823 of 2011, heard on 18th October, 2011.

Constitution of Pakistan---

----Art. 199---Rules of Business, (1973), R.15---Constitutional petition---Civil service---Requirement of Police Officers for United Nations, Department of Peacekeeping Operations---Violation of Policy for Selection of Officers---United Nations, Department of Peacekeeping Operations, required Police Officers from different States, including Pakistan---For the purpose of selection, United Nations had prepared a Policy for Selection of Officers---Under said Policy minimum age limit was 25 years and upper age limit had been declared as 62 years, preferably 55 years---Government of Pakistan had prepared its own policy vide letter dated 28-4-2011 and the age limit, in violation of United Nation's Policy was changed and it was provided that officers should be more than 30 years and less than 50 years, in such a way most of the officers had been deprived from participating in the competition---Upper age limit had been declared as 50 years, whereas the criteria given by the United Nations, was 62 years---50% quota had been assigned to the repeaters---Policy of the Government, in circumstances, was based on discrimination---No plausible explanation had been put forward as to why all Police Officers were not permitted to compete for posting in United Nation's Mission---Policy making, no doubt was the prerogative of government and the High Court in exercise of its constitutional jurisdiction could not make policy for the government, but if a policy itself was not supported by any Law or Rule, or was based on discrimination, then the court had the jurisdiction to examine the same---Discriminatory attitude of the department was also clear from the fact that certain officers were sent in violation of their own policy---Policy of the government based on letter dated 28-4-2011, could neither be considered as fair nor just, but was illegal and void---All the petitioners/Police Officers, eligible to appear in the test in accordance with the criteria laid down by the United Nations Department of Peacekeeping Operations would have the right to participate in the competition, in circumstances---Order accordingly.

Ch. Muhammad Ashraf Gujjar for Petitioners (in Writ Petitions Nos.2765, 2901 and 2840 of 2011).

Malik Muhammad Siddique Awan for Petitioners (in Writ Petitions Nos.2887 and 2858 of 2011).

Petitioner in person (in Writ Petition No.2891 of 2011).

Adil Aziz Qazi for Petitioner (in Writ Petitions Nos.2893, 2823, 2859, 2860, 2878, 2628, 2796 and 2808 of 2011).

Asad Iqbal Siddiqui for Petitioners (in Writ Petitions Nos.2873, 2874, 2875 and 2876 of 2011).

Dr. Umair ul Hassan on behalf of counsel for Petitioners (in Writ Petition No.2842 of 2011).

Malik Amirdad Awan for Petitioners (in Writ Petitions Nos.2870 and 2793 of 2011).

Mirza Qamar-uz-Zaman, D.S.P., Rana Muhammad Anwar Khan, D.S.P. and Shehzada Saleem, D.S.P. in person (in Writ Petition No.2775 of 2011).

Shafi Muhammad Chandio, D.A.-G., Ali Akbar, S.P. Legal, NH&MP, Javaid Iqbal, D.S.P., Legal, Rawalpindi on behalf of I.-G.P., Punjab, Lahore; Javaid Iqbal Khattak, S.P. Legal and Abdul Rauf, Inspector Legal, Islamabad for Respondents.

Date of hearing: 18th October, 2011.

2012 P L C (C.S.) 153

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

AMIR FAROOQ

Versus

GOVERNMENT OF PAKISTAN through Ministry of Housing and Works through

Secretary and 3 others

Writ Petition No.3310 of 2011, decided on 15th December, 2011.

Constitution of Pakistan---

----Arts. 199 & 25---Constitutional petition---Civil service---Withdrawal of interview call of candidates who passed the written test and re-issuing the call letters for written test to all the candidates who could not pass the said test---In the present case, 779 candidates including the petitioner applied for four vacant posts of Assistant Directors---Fifty seven candidates were short-listed who were called for written test, in which 35 candidates appeared---Out of those candidates, only 16 passed the test including the petitioner---Authorities thereafter decided to re-issue the call letters for written test to all the candidates who challenged said decision of the authorities---Validity---After qualifying the written test out of 779 candidates, the successful candidates deserved appreciation and reward instead of pushing them to the wall---Asking for a fair treatment and equality of law was the right of every citizen guaranteed by Art.25 of the Constitution---Courts were under obligation to safeguard the fundamental rights of the citizens---Result of petitioner had not been challenged by the respondents; and there was no law/rule to recall the failed candidates for the same test for which they could not qualify---Good governance was the demand of the present day; and if transparency was overlooked, the candidates and the general public, would be having a sense of deprivation which would lead to frustration, dejection, humiliation and depression---Such bad governance could also create a chaos in the society---Merit, in any case, had to be considered and the successful candidates could not be ignored only because the favourite candidates of the authorities could not qualify for the test---Authorities had not taken a stand that test process was not transparent or the petitioner had passed the written test with unfair means---Action of the authorities for withdrawal of interview call letters of 16 successful candidates, in circumstances, was declared to be illegal; and the decision of the authorities for recalling of the failed candidates for fresh test was set aside---Authorities were directed to complete the recruitment process out of successful candidates in a fair and transparent manner.

2011 SCMR 944; PLD 2010 Lah. 230; 2009 PLC (C.S.) 966; PLD 2010 Lah. 123; 2011 MLD 1494; PLD 2011 SC 44; PLD 2011 SC 22 and 2011 PLC (C.S.) 116 ref.

Federal Government Employees Housing Foundation through Director-General Islamabad and another v. Muhammad Akram Ali Zai, Deputy Controller PBC, Islamabad PLD 2002 SC 1079 rel.

Syed Khawar Ameer Bukhari for Petitioner.

Muhammad Asif with Malik Zafar Abbas, Director (Law) for Respondents.

2012 P L C (C.S.) 328

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

MUHAMMAD NAWAZ

Versus

MINISTRY OF HEALTH through Secretary, Islamabad and another

Writ Petition No.2410 of 2006, heard on 13th December, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Civil service---Termination of service---Claim for gratuity and pensionary benefits---Petitioner who was taken on the Pay Roll of Society, his services were terminated by giving him one month's advance notice---Petitioner made representation for grant of gratuity and payment of pensionary benefits, which representation having remained unattended, the petitioner had invoked the constitutional jurisdiction of High Court---Pakistan Red Crescent Society though was creation of a statute, but it had nothing to do with performance of functions in connection with the affairs of the Federation, a Province or a Local Authority---Society had its own constitution based on "Geneva Convention", to which the society was a party---Aims and objects of the society, appointment letter issued to petitioner, Society's Regulations of 1974 had clearly shown that for all practical intent and purpose, the status of the society was of an N.G.O., which was not only independent, but one of the primary objects was to receive donations/gifts to provide and facilitate charity---Grievance of petitioner, could not be addressed by High Court in exercise of constitutional jurisdiction as no writ could be issued against the society---Status of the employees of Pakistan Red Crescent Society was not of a civil servant and the society could not be treated as a person performing functions in connection with the affairs of the Province---High Court had no jurisdiction to entertain and issue writ against the society.

2008 PLC (C.S.) 715; 2000 PLC (C.S.) 796; 2005 PLC (C.S.) 1300 ref.

Zia Ullah Khan Niazi v. Chairman, Pakistan Red Crescent Society 2004 SCMR, 189; Pakistan Red Crescent Society v. Syed Nazir Gillani PLD 2005 SC 806 and Pakistan Red Crescent Society v. Zia Ullah Khan Niazi 2011 SCMR, 1901 rel.

(b) Words and phrases---

----"Society", meaning and connotation

Concise Oxford English Dictionary (11th edition, revised) and Black's Law Dictionary (8th edition) ref.

Muhammad Ramzan Khan for Petitioner.

Babar Bilal for Respondent No.2.

Date of hearing: 13th December, 2011.

2012 P L C (C.S.) 359

[Islamabad High Court]

Before Riaz Ahmad Khan, J

Dr. Syed SIBTAIN RAZA NAQVI

Versus

HYDROCARBON DEVELOPMENT INSTITUTE OF PAKISTAN, ISLAMABAD

through Secretary and 3 others

Writ Petition No.4088 of 2010, decided on 24th June, 2011.

(a) Hydrocarbon Development Institute of Pakistan Act (I of 2006)---

----Ss. 20 & 21---Hydrocarbon Development Institute of Pakistan Service and Financial Rules, 2009, R.13.1--Government Servants (Efficiency and Discipline) Rules, 1973, R.6(2)---Removal from Service (Special Powers) Ordinance (XVII of 2000), Preamble---Constitution of Pakistan, Art.199---Constitutional petition---Removal from service---Petitioner was issued charge-sheet by the Institute under Rule 6(2) of Government Servants (Efficiency & Discipline) Rules, 1973---Petitioner replied to the said charge-sheet after which show-cause notice along with statement of allegations was issued to him---Penalty of removal from service was imposed upon petitioner and his departmental appeal was also rejected---Petitioner's contention that enquiry was not conducted in accordance with law and charge sheet, show-cause notice and his removal order were not issued by competent authority---Validity---Charge sheet was properly replied to by the petitioner and thereafter inquiry was conducted in which petitioner had participated and was provided an opportunity of hearing in person---Petitioner had made statement that his reply to the charge sheet was what he wanted to say and did not want to add anything else to it, therefore it could not be said that enquiry was conducted in absence of the petitioner---Show-cause notice was properly replied to by the petitioner and order of removal from service was passed by competent authority as provided in Hydrocarbon Development Institute of Pakistan Service and Financial Rules, 2009, therefore, contention of petitioner that removal from service order was not issued by the competent authority, was not correct---All legal requirements were fulfilled and it could not be said that order passed against petitioner was in violation of any law or rules---Constitutional petition was dismissed in circumstances.

(b) Civil Servants Act, (LXXI of 1973)---

----S.2---Service Tribunals Act, (LXX of 1973), S.2-A---Hydrocarbon Development Institute of Pakistan Act, (I of 2006), Ss.20 & 21---Hydrocarbon Development Institute of Pakistan Service and Financial Rules, 2009, R.13.1---Constitution of Pakistan, Art.199---"Civil servant"---Definition---Scope---Petitioner was not civil servant under the Civil Servants Act, 1973 but the Rules governing his services were statutory, so only remedy available to him was to file constitutional petition.

PLD 2006 SC 602 ref.

Muhammad Shoaib Shaheen for Petitioner.

Abdul Rashid Awan for Respondents Nos.1 and 3.

Shafi Muhammad Chandio, D.A.-G. for Respondent No.2.

Date of decision: 24th June, 2011.

2012 P L C (C.S.) 362

[Islamabad High Court]

Before Riaz Ahmad Khan, J

MUHAMMAD MUNAWAR HUSSAIN and 16 others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment, Government of

Pakistan, Islamabad and 4 others

Writ Petition No.2062 of 2010, decided on 23rd September, 2011.

Constitution of Pakistan---

----Arts. 4, 25 & 199---Constitutional petition---Civil service---Upgrading of post---Discrimination---Petitioners were working as Medical Assistants in BS-8 in Islamabad Capital Territory whereas employees working on the same posts in Punjab were in BS-16---Petitioners' contention that they were being discriminated as nature of duties and qualification for the post in Punjab and in Islamabad Capital Territory was the same but they had not been upgraded to bring them at par with similarly placed employees of Punjab Government---Validity---Qualification and nature of duty for the post of Medical Assistants in Punjab and in Islamabad Capital Territory was the same---Article 25 of the Constitution required that persons similarly placed had to be similarly treated, except on the basis of reasonable classification---Qualification and nature of duties of both posts being the same, petitioners could not be treated differently---Petitioners in light of Articles 4 and 25 of the Constitution had the inalienable right to be treated in accordance with law, as in law there should be no discrimination, as all citizens were equal before the law and were entitled to equal protection of law---Equality before law was subject to reasonable classification, but in the present case, there was no question of any classification---Contention of the authorities that petitioners had accepted the post in BS-8 and now they could not claim upgradation, was not correct, as upgradation was not part of the terms and conditions of service---Authorities were directed by High Court to upgrade the posts of petitioners and bring them at par with similarly placed employees of Punjab Government---Constitutional petition was accepted, in circumstances.

PLD 1957 SC 9; 2004 PLC (C.S.) 586; 2004 PLC (C.S.) 1089 and The Secretary, Establishment Division, Islamabad and another v. Zameer Ahmed Thaheem and others C.P. No.911 of 2011 fol.

Muhammad Akhtar Anjum for Petitioners.

Muhammad Abid Raja, D.A.-G. and Raja Muhammad Yaseen Standing Counsel for Respondents.

Date of decision: 23rd September, 2011.

2012 P L C (C.S.) 377

[Islamabad High Court]

Before Riaz Ahmad Khan, J

FASIH AZHAR

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Petroleum and Natural Resources, Government of Pakistan, Islamabad and 2 others

Writ Petition No.4723 of 2010, decided on 24th June, 2011.

Constitution of Pakistan---

---Art. 199---Constitutional petition---Maintainability---Civil service---Appointment on contract basis ---Termination of service---Petitioner was appointed on contract term basis for a period of three years but his service was terminated before expiry of the said period---Petitioner's contention that no opportunity of hearing was provided and no show cause notice was issued to him and his termination order was result of pointing out by him of certain irregularities in his department---Validity---Petitioner had been appointed on contract basis and in contractual obligations no writ could be issued---Termination order was without any stigma, therefore same could not be challenged---Petition not being maintainable, same was dismissed.

Muhammad Shoaib Shaheen for Petitioner.

Mushtaq Hussain Bhatti for Respondents Nos.2 and 3.

Date of hearing: 24th June, 2011.

2012 P L C (C.S.) 499

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, CJ

ABDUL KHALID

Versus

MANAGING DIRECTOR, RAILWAYS CARRIAGE FACTORY, ISLAMABAD and 3 others

Writ Petition No.399 of 2011, heard on 4th October, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Railway employee---Medical treatment---Reimbursing of medical bill---Petitioner was retired employee of Pakistan Railways and his grievance was that authorities declined to reimburse his medical bill---Validity---Doctor of Railway hospital, had not admitted the petitioner in the hospital and compelled him to purchase prescriptive/diagnosed injections/medicines from open market and petitioner who was suffering from chronic disease having no other option resorted to purchase advised medicines from open market, as such petitioner could not be penalized for no fault on his part---Provision of health and education facilities are deemed to be the primary responsibility of the State in civilized societies---Petitioner who was retired employee of Pakistan Railways, was running behind State Functionaries for reimbursement of an amount which he had spent for purchase of medicines advised by doctor of Railway hospital because the injections/medicines were not available in that hospital which otherwise were required to be provided by the hospital authorities---Petitioner was entitled to reimbursement of bills for local purchased medicines/injections, as advised by doctor of Railway hospital---High Court directed the authorities to reimburse the amount spent by petitioner in respect of prescriptive injections/medicines of doctor of Railway Hospital---Constitutional petition was allowed in circumstances.

Najeeb Ullah Khan Khattak for Petitioner.

Syed Mumtaz Mazhar Naqvi for Respondents.

Date of hearing: 4th October, 2011.

2012 P L C (C.S.) 502

[Islamabad High Court]

Before Riaz Ahmad Khan, J

ASGHAR ALI and others

Versus

MANSOOR MUZAFFAR ALI and 3 others

Writ Petitions Nos.1383 and 252 of 2011, decided on 10th October, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Educational degree---High Court cannot determine value of an educational degree.

(b) Criminal trial---

----Acquittal-- Presumption---If a person is acquitted of a charge, the presumption would be that he is an innocent person

2009 SCMR 985 and 1998 SCMR 1993 rel.

(c) Oil and Gas Regulatory Authority Ordinance (XVII of 2002)---

----S. 3(5)---Constitution of Pakistan, Art.199---Constitutional petition---Quo warranto, writ of---Scope---Member, Oil and Gas Regulatory Authority--- Appointment--- Integrity--- Determination--- Petitioners assailed appointment of respondent as Member, Oil and Gas Regulatory Authority on the ground that he was not a man of integrity, as F.I.Rs. were registered against him---Validity---By mere lodging of F.I.Rs. presumption of guilt could not be attached to respondent and it could not be said that his integrity was doubtful---In absence of any other material or evidence mere copies of F.I.Rs. were not sufficient to hold that respondent was not a man of integrity---Writ of quo warranto was a discretionary relief and any person could move for such writ, irrespective of the fact as to whether he was an aggrieved person or not---Court while ceased of the matter, would be under obligation to inquire whether the person holding disputed post, was holding the office under the orders of a competent authority and also to examine whether he would be legally qualified to hold the office or to remain in the office---Respondent was appointed by a competent authority and he was holding the post because he had been declared competent by legally constituted Committee---High Court declined to issue writ of quo warranto---Petition was dismissed in circumstances.

2004 SCMR 1185; PLD 2008 SC 298; 2003 SCMR 477; PLD 1969 SC 42; 2004 SCMR 1299 and 2004 PLC (C.S.) 1328 ref.

PLD 2007 SC 52 rel.

Sahibzada Ahmed Raza Khan Qasuri for Petitioners (in Writ Petition No.1383 of 2011).

M. Kokab Iqbal for Petitioner (in Writ Petition No.252 of 2011).

Anees Jillani for Respondent No.1.

Abdul Rehman Siddiqui and Tariq Aziz for Respondent No.2

Rao Abdul Ghaffar, Standing Counsel for Respondents Nos.3 and 4.

Date of hearing: 4th October, 2011.

2012 P L C (C.S.) 513

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, C.J. and Riaz Ahmad Khan, J

CHAIRMAN STATE LIFE INSURANCE CORPORATION OF PAKISTAN through Attorney

Versus

M. SALEEM AKHTAR and 28 others

Intra Court Appeal No.145 of 2011, decided on 5th October, 2011.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Intra court appeal---Promotion---Vested right---Scope---Respondent was employee of appellant Corporation and his grievance was that at the time of promotion, his junior was promoted and he was ignored---Single Judge of High Court allowed the petition and directed appellant Corporation to promote the respondent---Validity---Promotion was not a vested right of an employee and seniority alone was not sufficient for that purpose---Single Judge of High Court failed to elaborate as to how respondent was fit for promotion---Appellant Corporation was competent to amend criteria of promotion---Respondent was duly considered for promotion and was not found fit for promotion at the relevant time but subsequently he was promoted, therefore, Constitutional petition was liable to be dismissed---Division Bench of High Court set aside the judgment passed by Single Judge of High Court and allowed intra court appeal.

Syed Noorul Hasan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others 1987 SCMR 598; Government of Pakistan, Islamabad and others 1987 SCMR 598 and Dr. Omer Farooq Zain v. Bahauddin Zakariya University, Multan (2008 PLC (C.S.) 1012 rel.

Muhammad Tahir Malik for Appellant.

Umair Baloch for Respondent No.1.

2012 P L C (C.S.) 517

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, CJ

IZHAR-UL-HAQ

Versus

S.M.E. BANK LIMITED through President and another

Writ Petition No.2702 of 2006, decided on 28th October, 2011.

Regional Development Finance Corporation and Small Business Finance Corporation (Amalgamation and Conversion) Ordinance (LVI of 2001)---

----S. 7---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Voluntary Separation Scheme (VSS)---Benefits, withholding of---Grievance of petitioner was that he was originally a permanent employee of Regional Development Finance Corporation (RDFC) and he was denied benefits of---Voluntary Separation Scheme---Plea raised by authorities was that Constitutional petition was not maintainable, as there were no statutory rules applicable to petitioner--- Validity---Petitioner was employee of former RDFC and service rules of that Corporation were statutory---Petitioner, in view of S.7 of Regional Development Finance Corporation and Small Business Finance Corporation (Amalgamation and Conversion) Ordinance, 2001, would be deemed to be an employee whose services were to be regulated by the service rules of RDFC which were statutory---High Court while exercising extra-ordinary Constitutional jurisdiction under Art.199 of the Constitution could entertain and adjudicate upon such issue---Authorities could not produce even a single document to prove that petitioner was dismissed from his service, hence he was not entitled to VSS benefits---High Court directed the authorities to pay Voluntary Separation Scheme benefits to the petitioner, as he was entitled to the same---Petition was allowed in circumstances.

2004 CLC 780; 2004 PLC (C.S.) 604; 2011 SCMR 577; 2011 PLC (C.S.) 592; 2010 SCMR 253; 2009 SCMR 605; 2010 SCMR 1484; PLD 2010 SC 676; PLD 2007 SC 681 and PLD 2006 SC 602 ref.

Nisar Muhammad (OG-2698), Assistant Accountant, OGDCL, H.Q. Islamabad, Mirza Taimoor Baig (OG-2706) Assistant Account and Shakil Ahmed Kiani v. O.G.D.C.L. through its M.D. Civil Petitions Nos.1359 to 1361 of 2009 and Masood Ahmed Bhatti and others v. Federation of Pakistan, through Secretary, M/O Information Technology and Telecommunication and others Civil Appeals Nos.239 to 241 of 2011 rel.

Abdul Rahim Bhatti for Petitioner.

Barrister Tassadaq Hanif for Respondents.

Date of hearing: 4th October, 2011.

2012 P L C (C.S.) 681

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

RIZWAN AHMED BHATTI

Versus

FEDERATION OF PAKISTAN and 3 others through Secretary Privatization Commission

Writ Petition No.2959 of 2006, decided on 10th February, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination of service of contract employee---Petitioner/employee, whose service was terminated, was accepted by employer/company in pursuance of open ended contract---Status of the petitioner, in circumstances, was of contract employee---Rules governing a discipline/terms and conditions of the company, were non-statutory---No writ, in circumstances, could be issued against the company---Even otherwise, contractual liabilities/obligations, could not be enforced through constitutional petition---Proper course for the petitioner/employee would have been to agitate his grievance before the court of competent jurisdiction---High Court could not enter into disputed questions, which required recording of evidence and interpretation of the contract---Constitutional petition was dismissed.

Dr. Aslam v. QAU 2010 SCMR 253; EDO v. Faisal Sultan 2011 PLC (C.S.) 419 and Arshad Jamal v. N.-W.F.P. and others 2004 SCMR 468 distinguished.

Executive Council AIOU v. M. Tufail Hashmi 2010 SCMR 1484; Pakistan Telecommunication Company v. lqbal Nasir and others PLD 2011 SC 132 and Ejaz Ali Bughti v. PTCL and others 2011 SCMR 333 rel.

Muhammad Akram Sheikh and Barrister Sharjeel Sheharyar for Petitioner.

Syed Naeem Bukhari for Respondents.

Date of hearing: 25th January, 2012.

2012 P L C (C.S.) 696

[Islamabad High Court]

Before Shaukat Aziz Siddiqui and Muhammad Anwar Khan Kasi, JJ

CHAIRMAN, PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIAC), KARACHI and 3 others

Versus

TAYYABA HASNAIN and another

Intra-Court Appeal No.59 of 2008 in Writ Petition No.11 of 2008, decided on 2nd February, 2012.

Civil service---

----Conversion of contract employment into regular one---When any employee on contract was absorbed, into regular employment and there was no break in his/her service, then period of contract employment had to be considered for counting length of service for pensionary benefits---Employee, in the present case, was employed on 29-8-1995 on contract basis for a period of one year, but she continued performing her duties without any restraining order or fresh contract and she was permanently absorbed on 4-2-2000---Rules of Employer (P.I.A.) being non-statutory, its employees would be governed by the principle of "Master and Servant"---Employee having accepted her regularization of service on 4-9-2000, she could not take different stand by stating that she had been a regular employee from the very beginning (date of her appointment on 29-8-1995)---Period starting from 4-2-2000/date of regularization of her service was less than 10 years---Service Rules of Employer (P.I.A.) had clearly mentioned that 10 years' "regular service" would entitle the employee for pensionary benefits---Apart from the dispute about calculation of service period, the fact remained that writ could not be issued against a corporation in favour of an employee, where the service rules had not been framed with the prior approval of the Federal Government and was non-statutory.

PIAC v. Samina Masood PLD 2005 SC 831; PIAC v. Jamalur Rehman Durrani v. Secretary to Government and others PLD 1990 SC 719 and PIAC v. Tanweer-ur-Rehman (PLD 2010 SC 676 distinguished.

2002 PLC (C.S.) 225; 1996 SCMR 1185 and 1993 SCMR 609 rel.

Atta Ullah Hakim Kundi for Appellant.

Sh. Riaz-ul-Haq for Respondents.

Date of hearing: 21st December, 2011.

2012 P L C (C.S.) 730

[Islamabad High Court]

Before Muhammad Azim Khan Afridi, J

NAUMAN ASLAM and 4 others

Versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU ISLAMABAD and 7 others

Writ Petition No.2007 of 2009, decided on 17th January, 2012.

National Accountability Bureau Employees Terms and Conditions of Services (TCS) Rules, 2002---

---Paras. 3.22, 3.25 & 3.34---Constitution of Pakistan, Art.199---Constitutional petition---Promotion---Maximum length of service for promotion---Posts of Additional Directors BPS-19 were selection posts and promotion to the same was to be made by selection on merit---Twelve years of service in BPS-17 and above had been prescribed as maximum length of service for promotion in BPS-19---Petitioners, who did not have the said required length of service, could not be considered for promotion against the post of Additional Director (BS-19) by selection on merit---Employees (respondents) who were promoted to said posts of Additional Directors, were having said prescribed length of service of 12 years, they, in circumstances were eligible for promotion in view of terms and conditions laid down in paras. 3.25 and 3.22 of National Accountability Bureau Employees Terms and Conditions of Service (TCS) Rules, 2002 and their appointments against said post in BPS-19 were not against the prescribed rules---Promotion of the respondents to the position of Additional Directors had not affected any vested right of the petitioners, as they were not qualified to be considered against said posts due to lack of prescribed length of service.

PLD 1974 SC 151 rel.

Muhammad Shoaib Shaheen for Petitioners.

Nadeem Hassan, Prosecutor NAB for Respondent No.1.

Raja Khalid Ismail Abbasi for Respondents Nos.2, 4 to 8.

Babar Bilal for Respondent No.3.

2012 P L C (C.S.) 741

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

Ch. MUHAMMAD SHAFIQ

Versus

SECRETARY, MINISTRY OF INTERIOR, ISLAMABAD and 2 others

Writ Petition No.3241 of 2011, decided on 11th January, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion, eligibility and entitlement to---Petitioner had sought relief of declaration of minutes of Departmental Promotion Committee (D.P.C.), recommending the respondent for promotion to the post of Superintendent of Police, which, according to the petitioner, being based upon fraud and concealment of facts, were illegal, unlawful and of no legal effect---Petitioner prayed that authorities could be directed to hold fresh D.P.C. for the consideration of his promotion---Petitioner had contended that he had not been considered fit for promotion to the post of Superintendent of Police, though he was senior to the respondent, who had been so promoted---Validity---Case of the petitioner was not forwarded to the D.C.P. for the reason that only six posts were lying vacant, which were to be filled in by constituting D.P.C.---Since the name of the petitioner appeared at Serial No.7 in the seniority list, he was not recommended to D.P.C. for the purpose of promotion, as it related to the question of eligibility against the post, if lying vacant---Case of the petitioner had neither come within the parameters of eligibility nor the fitness as his case had not been yet matured for onward communication to D.P.C. in view of hard fact that only six vacancies were available---No discrimination could be attributed to the respondents---No allegation of bias or discrimination could be established against the department, case of the petitioner was not the same as urged---Constitutional petition was dismissed in circumstances.

PLD 1994 SC 593; 1991 SCMR 1129; 2007 PLC (C.S.) 811; Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others1996 SCMR 1185; Government of Punjab v. Sameena Parveen and others 2009 SCMR 1 and Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others 2011 SCMR 265 ref.

Raja Saif-ur-Rehman for Petitioner.

Respondent No.3 in person.

Date of hearing: 9th January, 2012.

2012 P L C (C.S.) 818

[Islamabad High Court]

Before Muhammad Azim Khan Afridi, J

Syed KHALID ALI BUKHARI and another

versus

GOVERNMENT OF PAKISTAN through Secretary (Finance) Secretariat Islamabad and 8 others

Writ Petition No.551 of 2011, decided on 2nd February, 2012.

(a) Constitution of Pakistan---

----Art. 199---Voluntary Severance Scheme (VSS)---Constitutional jurisdiction---Scope---Petitioners, employees of company, assailed orders of employer company whereby their offer to be considered for the Voluntary Severance Scheme (VSS) was rejected---Validity---Introduction and approval of the Scheme by the management of the company, by itself, was not an absolute, unqualified or unreserved offer to employees and that mere application under the Scheme by employees would not oblige the employer company to mandatorily grant and award the same---Discretion for consideration and evaluation of an offer submitted by an employee for consideration under the said Scheme was vested and assigned to the management of the company, and it was therefore, only the consent of the Managing Director / CEO that could transform and convert the proposal/offer into a binding contract or enforceable agreement---Petitioners had signified their willingness to avail said Scheme, but said willingness was a proposal at the most and the same had not been accepted by the competent authority of the company and no agreement enforceable under the law had, therefore, come into existence---Mere announcement of Scheme had not conferred any right on the petitioners, except a right to apply and offer themselves for consideration under said Scheme---Petitioners, being proposers were not entitled to enforce their claim for the Scheme as of right---Impugned orders declining the offer of the petitioners for consideration under the Scheme neither suffered from any illegality, nor the same could be treated or termed as an arbitrary or discriminatory act on part of the company---Company was a public limited company registered with the Securities and Exchange Commission of Pakistan---Article 199(1)(a)(i) of the Constitution, authorized an aggrieved party to seek an order against a person performing functions in connection with the affairs of the Federation or a Provincial or local Authority, to refrain such person from doing anything he was not permitted to do by law or to do anything he was required to do by law---Functions of the company, had no nexus with the affairs of the Federal or a Provincial or local Authority and it could not be, therefore, termed "a person" within the meaning of and for the purpose of Art.199(1)(a)(i) of the Constitution---Company was not required by law to accept the other of the petitioners compulsorily---Constitutional petition was dismissed.

(b) Constitution of Pakistan---

----Art. 199(1)(a)(i)--- Constitutional petition--- Maintainability---Respondent Company was a public limited company registered with the Securities and Exchange Commission of Pakistan---Article 199(1)(a)(i) of the Constitution, authorized an aggrieved party to seek an order against a person performing functions in connection with the affairs of the Federation or a Provincial or local Authority, to refrain such person from doing anything he was not permitted to do by law or to do anything he was required to do by law---Functions of the respondent company, had no nexus with the affairs of the Federal or a Provincial or local Authority and it could not be, therefore, termed "a person" within the meaning of and for the purpose of Art.199(1)(a)(i) of the Constitution

Sardar Zaheer Ahmad Khan for Petitioner.

Shabbir Abbasi, Standing Counsel.

2012 P L C (C.S.) 842

[Islamabad High Court]

Before Muhammad Azim Khan Afridi, J

MIR AHMAD KHAN

versus

FEDERATION OF PAKISTAN through Secretary, Establishment Division Government of Pakistan, Islamabad and 3 others

Writ Petitions Nos.2004 and 1059 of 2009, decided on 9th January, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional Petition---Civil Service---Ad hoc employee, reinstatement of---Contention of the petitioner was that the respondent was illegally reinstated as Deputy Managing Director (BPS-20) of the Department, which act of the authorities, adversely affected the right of legitimate expectancy of the petitioner to be considered for promotion to the same post---Validity---Post of Deputy Managing Director (BPS-20) was to be filled in by the Federal Government through direct appointment---Said appointment and other positions in BPS-20 to BPS-22 were, therefore, not made available for promotion and appointments to such posts by initial recruitment---Petitioner could not claim appointment to the said post by promotion and no vested right of the petitioner, as such, including his alleged vested right of legitimate expectancy to the higher scale of BPS-20, was neither available nor violated or infringed---­Petitioner had retired from service during the pendency of the Constitutional petition and was neither superseded for promotion by any junior officer nor he was entitled to be considered for the same---Special committee of the Cabinet on sacked employees, had declared ad hoc employees entitled for reinstatement---Respondent was, neither disqualified on the basis of date of appointment in service nor on the basis of date of termination from service or due to the fact that the respondent was an ad hoc employee---Constitutional petition was dismissed.

Mrs. Shagufta Razzaq Mirza v. Government of Pakistan through Secretary Education Civil Appeal No.539 of 2009 and Federation of Pakistan and others v. Amir Zaman Shinwari 2008 SCMR 1138 distinguished.

Muhammad Shoaib Shaheen for Petitioner.

Manzoor-ul-Haq for Respondent No.4.

2012 P L C (C.S.) 854

[Islamabad High Court]

Before Muhammad Azim Khan Afridi and Riaz Ahmad Khan, JJ

Dr. BABUR WASIM ARIF

versus

FEDERATION OF PAKISTAN through Secretary, Statistic Division, Government of Pakistan, Islamabad and another

Intra-Court Appeal No.194 of 2011, decided on 8th February, 2012.

Government Servants (Application for Services and Posts) Rules, 1966---

----Rr. 3 & 5---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court Appeal---Civil service---Appellant was serving as a Statistical Officer and availed a scholarship for completing his Ph.D abroad---Under terms of the undertaking and surety bond furnished by the appellant at the time of availing said scholarship, he was bound to serve the government, for a period of five years subsequent to the completion of his Ph.D---Appellant, on completion of his Ph.D, applied for a post of lecturer at a University, through Director General of his department, and said application of petitioner was not forwarded and no objection certificate was not issued to the petitioner---Contention of the appellant was that under the surety bond and terms of the undertaking, the appellant could apply for the post of lecturer at the said University, which being a government organization/university enjoyed a similar status and the post of lecturer was in the service of the government---Validity---According to undertaking furnished by the appellant, he was bound to serve the government for a period of five years after completion of his training abroad, and the said period had not yet expired---According to R.3 of the Government Servants (Applications for Services and Posts) Rules, 1966, no government servant could apply for appearing in competitive examination or for appointment to any post other than the post which he held for the time being except with prior permission in writing of the head of the office, Ministry or Division in which he was employed---Appellant was not granted permission for applying to the post of lecturer by the head of his Department, as such, his selection to and consideration for the post of lecturer by the University was not in harmony with R.3 of the Government Servants (Applications for Services and Posts) Rules, 1966---Undertaking of the appellant to serve the government for a period of five years was a voluntary act of the appellant and on the basis of the same he was awarded the facility to improve and upgrade his educational qualification---Sound reasons had emerged for refusing of permission mandatorily required by the appellant for applying to the post of lecturer under said Rules---Service of University could not be termed as service of the government as the said University was neither a Ministry nor a Division being run and controlled by the Government, and was an entity independent of government hierarchy---Intra-court appeal was, accordingly, dismissed.

Ali Murad Baluch for Appellant.

Raja Abid, D.A.-G. along with Akhtar Hussain, Dy. Director, Statistic Division for Respondent.

2012 P L C (C.S.) 895

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

AKMAL MUMTAZ

versus

OIL AND GAS DEVELOPMENT COMPANY LIMITED, ISLAMABAD through Chairman, and CEO OGDCL House, Islamabad and 4 others

Writ Petition No.2200 of 2007, decided on 14th February, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Adverse remarks, expunction of---Petitioner had sought expunction of adverse remarks in the performance evaluation report, alleging the same were without lawful authority, coram non judice, mala fide, harsh and capricious---Petitioner had alleged that Reporting Officer who due to certain reasons had become personal, had communicated the adverse remarks for the relevant period, despite the fact that his previous Annual Confidential Reports, were either good or very good; that sudden adverse remarks against him without any prior warning or advice, were not supported by Performance Evaluation Rules and that he was ranked senior, but due to hurdle of adverse remarks in his way all his juniors had been promoted, but due to the atrocities of the highups, he was ignored only for the reason of said adverse remarks---Authorities had clarified from the record that at various occasions, Counselling was afforded to the petitioner; and since the beginning he earned adverse report, which he had concealed---Petitioner himself in his own appeals preferred to the Chairman and authorities, indicated issuance of adverse report before the period in question---Available record had shown that, not only the Reporting Officers had reported against the petitioner adversely, but other quarters too had reported against him about his slackness and lethargy not taking interest in the work as well as non-cooperation---Only reason of non-communication of adverse remarks within 30 days could not be taken as a great consideration for declaring Annual Confidential Reports as a whole fit to be expunged---Petitioner being not able to substantiate his claim in view of the material available on record, his petition as prayed, carried no weight.

1992 PLC (C.S.) 732; 1988 PLC (C.S.) 396; PLD 1992 (C.S.)? 144 (sic); 1992 PLC (C.S.) 18; PLD 1986 SC 684; PLD 1995 SC 556; NLR 1996 (TD) Service 100 (sic); 2010 PLC (C.S.) 946 and 2010 PLC (C.S.) 876 distinguished.

Ms. Shazia Samad for Petitioner.

Raja Muqsit Nawaz Khan for Respondents.

2012 P L C (C.S.) 924

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, C.J.

NASEER AHMAD and 7 others

versus

NESCOM through Chairman NESCOM, Islamabad and 2 others

Writ Petition No.3326 of 2010, heard on 14th March, 2012.

National Command Authority Act (V of 2010)---

----Ss. 2, 3, 8 & 9---Constitution of Pakistan, Art.199---Constitutional petition---Maintainablity---Non-technical employees of---Strategic Plans Division, a subsidiary of National Engineering and Scientific Commission (NESCOM)---Reduction of pay-scale of such employees (petitioners)---Rules of NESCOM framed by National Command Authority under S.9 of National Command Authority Act, 2010 were non-statutory as prior approval thereof by Federal Government was not statutorily required---Employees could not invoke constitutional jurisdiction of High Court, rather same might avail alternate remedy available to them under law---­High Court dismissed constitutional petition for being not maintainable, in circumstances.

PLD 1969 SC 407; 2003 SCMR 819; 2004 SCMR 1864; 1992 SCMR 1652; PLD 2005 Lah. 261; PLD 2010 SC 676; 2010 SCMR 1484; 2012 SCMR 1912; PLD 1992 SC 207 and 2000 SCMR 907 ref.

Director General, National Development Complex, Government of Pakistan, Islamabad v. Kashif Ayub Khan Civil Appeal No.479 of 2010; Khalil-ur-Rehman v. Secretary National Command Authority and 2 others Writ Petition No.251 of 2010 and Director (Admn.) PAEC Islamabad and others v. Nasir Mehmood I.C.A. No.247 of 2010 rel.

Ch. Nasir Abbas Minhas for Petitioners.

Abdur Rehman Siddiqui for Respondents.

2012 P L C (C.S.) 934

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, C.J. and Noor-ul-Haq N. Qureshi, J

Major (Retired) MUHAMMAD FAROOQ

versus

CHAIRMAN, NATIONAL ACCOUNTABILITY BUREAU (NAB), ISLAMABAD and 3 others

I.C.A. No.98 of 2010, heard on 6th March, 2012.

National Accountability Ordinance (XVIII of 1999)---

----S. 28---Pakistan Engineering Council Act, 1975 (V of 1976), S.25---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Appointment in NAB---Appellant was employee of National Accountability Bureau (NAB) and his grievance was that the authorities did not count his service in pervious department towards fixation of pay and seniority in NAB---Validity---Both the departments were autonomous bodies established through Ordinance and appellant joined one autonomous body having been relieved from other autonomous body, therefore, fixation of pay be decided in the light of their own policy and service rules-- Division Bench of High Court declined to interfere in the judgment passed by single Judge of High Court whereby Constitutional petition filed by appellant was dismissed---Intra-court appeal was dismissed in circumstances.

Nafees Ahmad v. Government of Pakistan and others 1999 SCMR 1619; Majid Hussain v. Secretary, Finance Division, Ministry of Finance and 2 others 1998 SCMR 1442; Syed Abdus Samad Pirzada v. Government of Punjab through Finance Department and another 2008 SCMR 14; Chairman CBR and others v. Nawab Khan 2010 SCMR 1399=2010 PLC (C.S.) 804; Akbar Shah v. Securities and Exchange Commission of Pakistan through Chairman 2011 PLC (C.S.) 1175; Agha Abdur Rahman Khan and others v. Managing Director, Cholistan Development Authority, Bahawalpur 2004 MLD 1615 and Muhammad Munir Abdullah v. T.M.A and another 2010 MLD 1550 ref.

Muhammad Bashir Khan for Appellant.

Nadeem Hassan, Senior Prosecutor, NAB, Zafar Minhas, Manager Legal Pakistan Engineering Council and M. Imran Shaukat Accounts Officer, AGPR for Respondents.

2012 P L C (C.S.) 1193

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

IRSHAD AHMAD and others

Versus

MUHAMMAD JAHANGIR BASHAR, SECRETARY MINISTRY OF EDUCATION. ISLAMABAD and 2 others

Criminal Original Nos.46/W, 98/W, 99-W of 2008, 6-W, 94-W, 95-W, 97-W, 109-W, 115-W, 122-W, 130-W, 132-W, 139-W and 140-W of 2009 in Writ Petition No.2019 of 2006, decided on 21st March, 2012.

Contempt of Court Ordinance (IV of 2003)---

----Ss. 12 & 17---Contempt of court---Civil Service---Applicants contended that the High Court through its judgment had directed the Authorities to consider regularizing the service of the applicants---Applicants moved petition against the Authorities for contempt of court and sought that directions be given to the Authorities to issue notifications for regularization of service of the applicants or otherwise the High Court initiate contempt of court proceedings against the Authorities for contempt of its orders---Validity---No firm decision for regularizing the appointment of the petitioners was evident from the judgment of High Court and the same was attached to the outcome of a decision pending before the Supreme Court, which eventually did not fully support the case of the petitioners---Perusal of policy introduced by the Cabinet Committee revealed that the case of the petitioners did not come within the ambit of such policy, as such they could not claim relief of any kind---No clear-cut direction, as contended by the petitioners, could be found which could be said to have been violated by the Authorities---Decision of the Supreme Court had been communicated which did not support the version of the petitioners---Criminal original applications were dismissed in circumstances.

Ali Murad Baloch, Musharaf Mahmood Qazi, and Muhammad Shoaib Shaheen for Petitioners.

Raja Muhammad Abid, D.A.-G. and M. Zeeshan Akbar, Deputy Director (Legal), FDE of Respondents.

Date of hearing: 15th March, 2012.

2012 P L C (C.S.) 1220

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, C.J. and Noor-ul-Haq N. Qureshi, J

Ms. NAJAF HAIDER and 51 others

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Government of Pakistan, Islamabad and 3 others

I.C.A. No.263 of 2011, heard on 13th February, 2012.

Civil service---

----Contract/daily wages employees---Regularization of service---Employees who were appointed on contract/daily basis had been performing their duties with full devotion for the last so many years; they were informed that as and when rules/regulations were framed, their services would be regularized---Government introduced a policy with regard to regularization of services of contract/daily wages employees, but despite that authority instead of regularization of services according to said policy terminated their services---Validity---Policy evolved by the Government regarding regularizations of contract/daily wages employees, must be implemented in letter and spirit---Most of the employees had become over-age and would not be able to get government service, if they were not regularized---In the light of said Government Policy and minuts of Cabinet Committee meeting, impugned order of High Court whereby constitutional petition of the employees was dismissed, was set aside; with directive to the authorities to consider the regularization of services of the employees, in circumstances.

PLD 2010 SC 841 ref.

Raja Aamir Abbas and Muhammad Safdar Janjua for Appellants.

Ishfaq Khan for Respondent No.4.

Date of hearing: 13th February, 2012.

2012 P L C (C.S.) 1275

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

MUHAMMAD IRSHAD UL HASSAN

Versus

PAK PUBLIC WORKS DEPARTMENT (PAK PWD) through Director-General and 3 others

Writ Petition No.194 of 2012, decided on 30th April, 2012.

Constitution of Pakistan---

----Art. 199---Civil service---Holding of charge of vacant post for limited period in the Federal Government---Hiring services on deputation---Petitioner who was serving as Assistant Engineer (BP-17), vide office order was allowed to hold the charge of vacant post of Executive Engineer BP-17 for a period of three months, or till the posting of Executive Engineer on regular basis, whichever was earlier---Petitioner, all of a sudden was transferred to some other place and respondent whose services were hired from another department on deputation, was posted in place of the petitioner---Petitioner assailed the appointment of respondent on deputation---Respondent could not be taken on deputation as he was not employee of the Federal Government, but was an employee of an autonomous body, he was also not holder of permanent appointment of Executive Engineer on regular basis---Petitioner, in circumstances, could not be removed from performing duties as Executive Engineer on current charge basis as per terms and conditions of his service---Petitioner who was at the verge of his retirement, could not have been transferred legally to some other place---Mannerism in which respondent's services were hired on deputation, seemed non-transparent---High Court declared that appointment of respondent on deputation was illegal, against entitlement, unprecedented, void ab initio, against the dictums of superior courts, non-transparent, a sham, travelling on favouritism and an infringement of the rights of the regular employees---Same was set aside with direction that respondent could immediately be sent back to his parent department---Prayer of the petitioner to retain him in place of respondent on his original position as Executive Engineer (BS-18) on current charge basis was declined.

1996 PLC (C.S.) 447 ref.

Abdul Rahim Bhatti and Yasir Rahim Bhatti for Petitioner.

Rehan-ud-Din Khan, Standing Counsel.

Syed Zafar Ali Shah for Respondent No.4.

Ibrahim Shah, Law Officer, PWD.

Falak Sher Virk, S.O. M/o Housing and Works.

Date of hearing: 4th April, 2012.

2012 P L C (C.S.) 1317

[Islamabad High Court]

Before Noor-ul-Haq N. Qureshi, J

Syed MANSOOR AHMED SABZWARI

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Housing and Works Government of Pakistan, Islamabad and another

Writ Petition No. 3281 of 2011, heard on 7th March, 2012.

Accommodation Allocation Rules, 2002---

----Rr. 16 & 20---Constitution of Pakistan, Art.199---Constitutional petition---Subletting of government accommodation---Petitioner was government servant and his government accommodation was got vacated by the authorities on the ground of subletting---Validity---Petitioner indulged in concealment of facts on record as well as maneouvering record by signing Vakalatnama on his return from abroad and again proceeded abroad but petition was filed in his absence---Discrepancies on the part of petitioner had come on record from signing Vakalatnama and submitting petition before the High Court---High Court declined to interfere in order passed by authorities, whereby accommodation was got vacated from petitioner---Petition was dismissed in circumstances.

Saadat Hayat Khan v. Zaheerud Din and another 2011 CLC 1333 ref.

Muhammad Nazeer Jawad for Petitioner.

Rana Abid Nazeer Khan along with Qaiser Mehmood, Law Officer, Estate Office for Respondents.

Date of hearing: 7th March, 2012.

2012 P L C (C.S.) 1355

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

Mrs. IRAM ADNAN and others

Versus

FEDERATION OF PAKISTAN and others

Writ Petitions Nos.3483, 3511, 3512 of 2011, 58 and 427 of 2012, heard on 20th March, 2012.

(a) Civil Servants Act (LXXI of 1973)---

----S. 22(2)---Service Tribunals Act (LXX of 1973), S.4(1)(b)---Constitution of Pakistan, Art. 199---Constitutional petition---Maintainability---Civil service---Fitness for promotion, determination of---Remedy---No remedy by way of filing appeal etc. is provided to civil servant against determination of "fitness", constitutional petition is maintainable in circumstances.

PLD 1989 SC 26; 2000 PSC 599; PLD 2003 SC 175; 2001 PLC (C.S.) 878; 2003 PLC (C.S.) 503 and Writ Petition No.1160 of 2011 rel.

(b) Constitution of Pakistan---

----Arts. 189 & 199---Constitutional petition---Compliance of judgment of Supreme Court---Petitioners were civil servants and their grievance was that the authorities did not comply with the directions in judgment passed by the Supreme Court---Validity---Constitutional obligation of High Court to enforce law declared by Supreme Court through different pronouncements---Executive functionaries should not become insensitive about any judgment containing direction to them by ignoring it or keeping aside the same---Court of law renders its judgment not for academic discussion, but with the object and purpose to undo the wrong and enforce the rights---Formula of awarding 15 marks on the discretion of Central Selection Board in cases of promotion of civil servants, was declared as illegal, superficial, unconstitutional, against the dictums of Supreme Court, non-transparent, result of adamant approach, whimsical, sham, unprecedented, infringement to Constitutional guarantees and principles of natural justice and the same was set aside---High Court directed the authorities to implement judgment of Supreme Court in its letter and spirit and restructure the formula for award of 15 marks in accordance with guidelines provided therein---Petition was allowed in circumstances.

PLD 1983 SC 652; 2006 PLC (C.S.) 564 and Secretary, Revenue Division, CBR/Federal Board of Revenue, Islamabad v. Gul Muhammad and others 2011 SCMR 295 ref.

Abdul Rahim Bhatti and Yasir Rahim Bhatti for Petitioners (in Writ Petitions Nos.3483, 3511 and 3512 of 2011).

Zulfiqar Khalid Maluka for Petitioner (in Writ Petition No.58 of 2012).

Muhammad Irshad Chaudhry for Petitioner (in Writ Petition No.427 of 2012).

Rehan-ud-Din Khan Standing Counsel for the State.

Saeed Ahmad Zaidi and Amjad Saeed Awan, S.O. Establishment Division for Respondents.

Date of hearing: 20th March, 2012.

2012 P L C (C.S.) 1377

[Islamabad High Court]

Before Muhammad Anwar Khan Kasi, J

SHAHID ALI ABBASI

versus

Messrs ELTEK VALERE PAKISTAN (PVT.) LTD. through Chairman of the Board and through Chief Executive Officer and 3 others

Civil Suit No.215 and C.M. No.909 of 2011, decided on 30th January, 2012.

(a) Civil Procedure Code (V of 1908)---

----O. VII, Rr. 10 & 11---Specific Relief Act (I of 1877), S.42---Rejection of plaint---Suit for declaration---Employment contract---Wrongful termination---Defendant sought rejection of plaint on the ground that the employment contract specified the choice of law and area of jurisdiction as UAE and therefore the suit was not maintainable to be adjudicated in Pakistan---Validity----Employment contract was executed in Pakistan and the plaintiff was employed to operate within Pakistan; and decision for his termination by the defendant/employer company's Board was taken in Pakistan under provisions of the Companies Ordinance, 1984---Cause of action, therefore, prima facie, arose in Pakistan---Application under Order VII, Rules 10 and 11, C.P.C. was to be decided on basis of tentative assessment of available material---Dispute required framing of issues, evidence from both the parties and detailed arguments---Dispute pertained to alleged civil wrong, and damages for loss of reputation were sought, therefore, civil court had jurisdiction over the matter---Application was dismissed.

2011 SCMR 27; 2009 CLC 1113; 2007 CLD 1324; 2007 CLC 209; 1987 SCMR 393; 1992 SCMR 1174; PLD 1968 Kar. 222; PLD 1979 Kar. 640; PLD 1984 SC 194; PLD 1965 SC 83; PLD 1997 SC 835; 2005 SCMR 642; PLD 1971 Lah. 598; 1974 SCMR 81; 2007 YLR 19; PLD 1985 Kar. 400; PLD 1971 Lah. 591; PLC 2011 SC 1007; 2009 SCMR 708; 2009 SCMR 109; PLD 2005 SC 806; 1999 SCMR 1526; 1999 SCMR 1507; PLD 2011 Kar. 484; 2011 SCMR 1053; PLD 2008 Isl. 48; PLD 1970 SC 373 and PLD 2006 SC 328 ref.

(b) Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S.42---Suit for declaration---Employment contract---Wrongful termination---Temporary injunction, grant of---Plaintiff, who alleged wrongful termination, sought to restrain the defendant/employer company from transferring any of its holdings and movable and immovable property in Pakistan or from closing its operations in Pakistan---Validity---Plaintiff had a prima facie case in his favour on the basis of tentative assessment, and available material and the balance of convenience also lay in his favour---High Court restrained the defendant/employer company from transferring of its share holdings or any movable or immovable property in Pakistan to the extent of the claim of the plaintiff till the final disposal of the suit---Application was allowed, in circumstances.

PLD 2006 SC 328 and 1974 SCMR 81 ref.

(c) Civil Procedure Code (V of 1908)---

----S. 148, O. XVII, R. 1---Suit for declaration---Application for enlargement of time for filing written statement---Written statement had to be filed within 30 days which was not done by the defendants within the prescribed time; however, for a fair trial and in the interest of justice, time was granted to the defendants by the High Court to file written statement within fifteen days and a cost of Rupees Five Thousand was imposed on the defendants as a penalty.

Isaac Ali Qazi, Advocate Supreme Court for Plaintiff.

Barrister Yousaf Khosa and Malik Omair Saleem for Defendants.

2012 P L C (C.S.) 1513

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, C. J.

Syed AURANGZAIB-UL-HASSAN

Versus

FEDERAL PUBLIC SERVICE COMMISSION through Chairman and another

First Appeal from Order No.13 of 2011, heard on 1st June, 2012.

Federal Public Service Commission Rules for Competitive Examination (CSS), 2008---

----R. 6(iii)(d) & (e)---Federal Public Service Commission Ordinance (XLV of 1977), S. 7(3)---Civil Superior Service (CSS) examination---Seats reserved for AJ&K candidates---Appearance of appellant as refugee of AJ&K in CSS examination held in year 2004 on such reserved seats by submitting State Subject Certificate---Appearance of appellant in CSS examination held in year 2008 on basis of domicile of Punjab and allocation of Information Group to him on being successful therein---Appellant's request to Public Service Commission for re-allocating him occupational group on basis of State Subject of AJ&K after coming to know to have qualified CSS examination held in year 2004---Refusal of Commission to accept appellant's such request---Validity---Government servant must be very conscious while providing particulars at time of his appointment---Domicile claimed by a candidate at time of entry into Government service would be treated as final throughout his service career---Appellant in year 2008 had appeared in CSS examination on basis of domicile of Punjab--Appellant could not claim re-allocation of occupational group on basis of domicile of AJ&K, which he had not claimed while submitting application for CSS examination in year 2008---Allowing a Government servant to change his domicile and then allocating him on its basis some other occupational group would amount to giving him a licence to claim change in seniority, occupational groups and mode of his appointment at any stage resulting into chaos amongst other servants etc.---Principles---High Court dismissed appeal in circumstances.

2005 SCMR 622 ref.

Muhammad Shakoor and Rehan Safdar v. Federal Public Service Commission and others PLD 2007 SC 381 rel.

Syed Muhammad Kalim Ahmad Khurshid for Appellant.

Tariq Mahmood Jahangiri, Dy. A.-G. for Respondents.

Date of hearing: 1st June, 2012.

2012 P L C (C.S.) 1525

[Islamabad High Court]

Before Shaukat Aziz Siddiqui, J

MUHAMMAD ADNAN LUQMAN

Versus

FEDERATION OF PAKISTAN, MINISTRY OF OVERSEAS PAKISTANIS through Secretary and 2 others

Writ Petition No.3700 of 2009, heard on 9th May, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Law Officer (Grade-8) in Overseas Pakistanis Foundation (OPF), post of---Refusal of Authority to appoint petitioner against post of Law Officer (Grade-7) alleged to be offered to him for being on top of merits list---Validity---Record showed that authority had appointed its present Law Officer (Grade-7) against such advertised post of Grade-8 after consideration of about 185 candidates by its Departmental Selection Committee---Nothing on record to show that petitioner was on top of merits list for such post of Grade-8---Record showed that Authority had appointed private respondent on post of Law Officer (Grade-7), which was not even advertised---Private respondent on relevant date was neither enrolled as an Advocate nor having experience as Law Officer or an Advocate---Ministry of Overseas Pakistanis, being Controlling Authority of OPF, was legally obliged to check such non-transparent, unfair and illegal acts of OPF---Authority had denied to have verbally offered post of Grade-7 to petitioner---Private respondent had been appointed against post of Grade-7 in a clandestine and mysterious manner being result of undue influence, colourable exercise of power and evil of favoritism etc.---High Court directed such Ministry to hold an inquiry about such appointment of private respondent and take action against persons involved in extending such undue favour and ignoring required qualifications and to make appointment on post of Law Officer (Grade-7) in transparent manner on merits after advertising same properly.

Petitioner in person.

Rehan-ud-Din Khan Standing Counsel for the State.

Shoaib Shaheen and M. Umair Baloch for Respondent No.3.

Irfan Farooq, Senior Law Offtcer OPF.

Date of hearing: 9th June, 2012.

2012 P L C (C.S.) 1537

[Islamabad High Court]

Before Iqbal Hameed-ur-Rahman, CJ

Dr. NAZEER AHMAD

Versus

FEDERATION OF PAKISTAN through Federal Secretary and 3 others

Writ Petition No.4145 of 2010, heard on 28th May, 2012.

National Command Authority Act (V of 2010)--

----Ss. 2(c)(d), 7, 9(1), 21 & 22---Constitution of Pakistan, Art.199---Constitutional petition---Dr. A. Q. Khan Laboratries (KRL), Kahuta---Placing name of petitioner (retired Metallurgist in KRL) on Exit Control List on instructions of Director General, Inter Services Intelligence (ISI)---Validity---Authority of KRL, in public interest or in interest of integrity, security or defence of Pakistan or friendly relations with foreign States and public order, could take measures in respect of movement, communications, privacy, assembly or association of its employees---Retired employees of KRL (being a strategic organization) would be considered as its employees---Petitioner would be considered as employee of strategic organization---Jurisdiction of High Court to interfere in impugned order was specifically barred by virtue of S.22 of National Command Authority Act, 2010---High Court dismissed constitutional petition for being not maintainable in circumstances.

Government of Pakistan v. Dada Amir Haider Khan PLD 1987 SC 504; Wajid Shamas-ul-Hassan v. Federation of Pakistan PLD 1997 Lah. 617; Khalid Rashid and 5 others v. Federation of Pakistan 2011 MLD 1532; Farooq Saleh Chohan v. Government of Pakistan PLD 2010 Kar. 394; Mian Ayaz Anwar v. Federation of Pakistan PLD 2010 Lah. 230 and S. Akbar Ali Shah v. Federation of Islamic Republic.of Pakistan 2011 MLD 1536 rel.

Shah Khawar for Petitioner.

Tariq Mehmood Jehangiri, Dy. A.-G.

Ahmer Bilal Soofi for Respondent No.4.

Date of hearing: 28th May, 2012.

2012 P L C (C.S.) 117

[Sindh High Court]

Before Imam Bux Baloch, J

PAKISTAN NATIONAL SHIPPING CORPORATION and another

Versus

Malik AYAZ SHARIF

Civil Revision Application No.258 of 2010, decided on 5th September, 2011.

Pakistan National Shipping Corporation (Contributory Provided Food) Regulations, 1979---

----Reglns. 14 & 17---Civil Procedure Code (V of 1908), 5.115---Re visional jurisdiction---Object, purpose and scope---Concurrent findings of fact by two courts below---Plaintiff, after serving Pakistan National Shipping Corporation for 26 years resigned from service---Plaintiff sought recovery of his Provident Fund as the same was contribution made by him during his service---Suit was decreed by Trial Court in favour of plaintiff and appeal filed by defendants was dismissed by Lower Appellate Court---Validity---Revisional jurisdiction of High Court was primarily intended to correct errors made by subordinate courts in exercise of their jurisdiction---Erroneous decisions of facts were not ordinarily revisable except when decision was based on no evidence, inadmissible evidence or perverse so as to cause grave injustice and in revisional jurisdiction, Court could interfere with findings of courts below only if such Courts had exercised their jurisdiction illegally and in breach of some provision of law or some material irregularity---Concurrent findings on a question of fact or mixed question of law and facts, if suffered from misreading or non-reading of evidence .or were based on no evidence or inadmissible evidence, High Court in exercise of revisional jurisdiction should correct the error committed by subordinate courts but in absence of any defect of misreading or non-reading of evidence in concurrent findings of two courts below on such question, interference of High Court in revision would amount to improper exercise of revisional jurisdiction---Re-examination and re-appraisal of evidence was not permissible in revisional jurisdiction even if conclusion drawn by subordinate courts on a question of fact was erroneous---Defendants were-unable to point out any irregularity, non-reading or misreading of evidence from record---Two courts below had given cogent reasons and in such circumstances High Court was reluctant to exercise of revisional jurisdiction in favour of defendants---Revision was dismissed in circumstances.

Muhammad Alam v. Noor Muhammad 1973 SCMR 606; Bharoo and 2 others v. Chief Settlement Commissioner and 2 others 1999 SCMR 786; Falak Sher v. Muhammad Mumtaz and 2 others 1992 MLD 1879; Abdul Qayyum v. Muhammad Rafique 2001 SCMR 1651; Muhammad Shahid Javed v. Abdul Rahim and 4 others 2008 YLR 126 and K.C. Mamoo v. Mrs. Badrunnisa 1985 CLC 332 distinguished.

Alamgir Khan through L.Rs and others v. Haji Abdul Sittar Khan and others 2009 SCMR 54; Abdul Aziz v. Sheikh Fateh Muhammad 2007 SCMR 336; Abdul Mateen and others v. Mst. Mustakhia 2006 SCMR 50; Muhammad Feroze and others v. Muhammad Jamaat Ali 2006 SCMR 1304 and Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others 2000 SCMR 346 disting.

Waqar Muhammad Khan for Petitioner.

Respondent in person.

Date of hearing: 5th September, 2011.

2012 PLC (C.S)124

[Sindh High Court]

Before Shahid Anwar Bajwa and Ghulam Sarwar Korai, JJ

ZAHID AHMED

Versus

PROVINCE OF SINDH through Secretary to the Government of Sindh Education

and Literacy Department, Karachi and 4 others

Constitutional Petition No.D-1881 of 2010, M.As. Nos.7405, 7406 of 2010 and 5246 of 2011, decided on 25th August, 2011.

(a) Constitution of Pakistan---

----Arts. 199. 3, 9 & 11---Constitutional petition---Civil service---Stopping ofsalary---Petitioner who was duly appointed by issuing appointment order after codal formalities, submitted his duty report to the concerned Authority---Service Book was accordingly prepared which was duly signed by the competent Authority---Petitioner had been signing the attendance register---Salary was paid to the petitioner till October, 2009, but then payment of salary was abruptly stopped, despite the petitioner was continuing working---If there were irregularities in the appointment of the petitioner, Departmental Authorities could take action under the relevant Efficiency and Disciplinary Rules and after due process, bring employment of the petitioner to an end, but it was not available to the authorities on the one hand to say that appointment of the petitioner was wrong and on the other take no action and continue to take work from the petitioner---Such conduct of authorities, taking work from the petitioner and not paying him, would amount to exploitation, which was forbidden by Art.3, denial of right of life, which was forbidden by , Art.9 and slavery and forced labour which was forbidden by Art.11 of the Constitution---As long as the petitioner was working, he was entitled to be paid his salary---If appointment of the petitioner was illegal, that was basically responsibility of the competent Authority and to take appropriate action---High Court directed that current salary of the petitioner be paid on regular basis by deducting 50% of it from tiz. salary of concerned officers---Order accordingly.

(b) Civil service---

----Public servant---Duty and obligation of---Authority given to public servant was a sacred trust and public servant was required to perform his duties honestly and diligently---lf any wrong was being committed by subordinate, it was duty of public servant to ensure that not only the act of wrong was brought to an end, but also the delinquent officer to take to task in accordance with the rules and it was responsibility of public servant that none of his subordinates was being unfairly treated or denied any of his service rights and if it happened, it was his duty to raise hue and voice to high so that the grievance of his subordinates was redressed according to law---If the public servant would not act in accordance with said principles, either he was complicit or was merely negligent and he must be bur?cned with requisite consequences.

WAPDA through Superintending Engineer and another v. Presiding Officer, Sindh Labour Court No.VII and others 1998 PLC 180 rel.

Muhammad Saleem Jassar for Petitioner.

Abdul Hamid Bhurgri, Addl. A.-G. assisted by Shahid Hussain Jatoi, State Counsel, along with Nazir Ahmed, Headmaster, Government Middle School (Boys), Sultan Sarki, Muhammad Hanif, A.D.O. Education, Thul and Azizullah, E.D.O., Education, Jacobabad for Respondents.

2012 P L C (C.S.) 127

[Sindh High Court]

Before Faisal Arab 4nd Nisar Muhammad Shaikh, JJ

HAKIM ALI UJJAN and others

Versus

PROVINCE OF SINDH and others

Constitutional Petitions Nos.D-1505 of 2010, D-73, D-153, D-1073, D-1076, D-1322 and 1581 of 2011, decided on 31st May, 2011

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment on contract basis on a post of permanent basis---Regularization of service---Petitioners were employed on contract basis in the year 2007 on vacancies which were of permanent nature; on completion of three years contract period, the petitioners filed petitions for regularization of their services---Plea of the authorities was that as petitioners were employed on contract basis, they had no protection as they could not be regarded as civil servants and that upon completion of the contract period they would cease to be in service---Validity---Where a post was of a permanent nature, the same had to be filled in through a permanent appointment---Person could be initially appointed on probation, but after successfully completing the probationary period, he was to be treated as confirmed employee---Petitioners who had served for more than three years in permanent posts in pay scale 1 to 4 could not be thrown out on the ground that they were employed on contract basis---Petitioners, for the last more than three years were working in their respective posts and were being paid their salaries; at no stage during subsistence of their contract any of them was terminated for being incompetent or found unsuitable for the job for any justifiable reason and there could not be two sets of employment working on the same post in government service, one employed on contract basis and the other on permanent basis, though the post was of a permanent nature---Manner in which the petitioners were being treated was highly unreasonable---Petitioners, who had been satisfactorily working on. permanent posts for the past more than three years on contract basis, were to be permanently absorbed in service first---If any post still would remain vacant after such absorption, the department would be free to advertise and fill such posts---Order accordingly.

Zameer Ghumro for Petitioners (in C.Ps. Nos.D-1505 of 2010, D-1073 and D-1581 of 2011).

Hadi Bux Bhatt for Petitioners (in C.Ps. Nos.D-73, D-153, D-1076 and D-1322 of 2011).

Imtiaz Ali Soomro, Asstt. A.-G., Sindh for Respondents.

Date of hearing: 31st May, 2011.

2012 P L C (C.S.) 160

[Sindh High Court]

Before Faisal Arab and Nisar Muhammad Shaikh, JJ

KAREEM BUX and others

Versus

PROVINCE OF SINDH through Chief Secretary, Government of Sindh and others

Constitutional Petitions Nos.D-347, D-465, D-690 and D-543 of 2010 decided on 31st May, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Abolishing of posts being surplus---Adjustment in other posts---Petitioners who were appointed as clerks in the local bodies, were assigned the posts of Octroi/Export Tax Clerks---When octroi and export tax were abolished in 1999, services of the petitioners became redundant and they became surplus staff; in order to gainfully utilize the services of the experienced petitioners they were adjusted against vacant posts of Secretaries of the Union Council, which was a BPS-7 grade clerical post---After about six years of said adjustment, authorities published an advertisement inviting applications for appointment to the posts of Secretaries wherein the petitioners had been adjusted several years ago---Petitioners claimed their permanent absorption on the posts---Authorities denied the claim of the petitioners alleging that petitioners were never absorbed permanently to the posts of Secretaries and that they could not claim any right to hold such posts, but were free to participate in the process of appointment as fresh candidates---Validity---Petitioners, at the time of becoming surplus were already permanent employees and were also adjusted against permanent posts of Secretaries of Union Councils---Petitioners, in circumstances, should be treated as permanently absorbed in the post which was assigned about six years back; after such adjustment, if any vacancy would remain, then only such vacant posts should be filled through fresh appointment---Order accordingly.

Qurban Ali Malano for Petitioners (in C.P. No.D-347 of 2010).

Abdul Qayum Shaikh for Petitioners (in C.Ps. Nos.D-465 of 2010, D-690 of 2010 and D-543 of 2010).

Imtiaz Ali Soomro, Asstt. A.-G., Sindh for Respondents.

2012PLC(C.S.)192

[Sindh High Court]

Before Gulzar Ahmad and Muhammad All Mazhar, JJ

SAUD NASIR QURESHI

Versus

FEDERATION OF PAKISTAN through Secretary and another

Constitutional Petition No. D-2761 of 2010, decided on 10th November, 2011.

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

Ss, 3 & S---Constitution of Pakistan, Art.199---Constitutional petition---Demotion for indefinite period---Petitioner was employee of respondent company and was proceeded under the provisions of Removal from. Service (Special Powers) Ordinance, 2000, for misconduct and was demoted to lower grade without fixing period for such demotion---Validity---Inquiry was conducted in accordance withlaw and ample opportunity was provided to petitioner---Petitioner was rightly awarded punishment but at the same time the authority overlooked or ignored that petitioner was reduced to one stage lower, in pay grade i.e. demotion to the position of junior officer but such penalty had been imposed for an imprecise and indefinite period, which was not permissible---Penalty for an indefinite period was not provided under the law, therefore, penalty awarded to petitioner for reduction to lower stage was modified and reduced for a period of two years only by High Court---Petition was disposed of accordingly.

Shahid Mehmood v. House Building Finance Corporation 2010 PLC (C.S.) 1360 and Member (A.C.E. and S.T.), Federal Board of Revenue, Islamabad v. Muhammad Ashraf 2008 SCMR 1165 rel.

(b) Civil service--

---Misconduct---Punishment---Scope---Bad faith and wilfulness may bring an act of negligence within the purview of misconduct but lack of proper care and. vigilance may not always be wilful to make it a case of grave negligence inviting severe punishment.

(c) Civil service--

----Punishment---Major and minor---Object, scope and purpose---Philosophy of punishment is based on the concept of retribution, which may be either through method of deterrence or reformation---Purpose of deterrent punishment is not only to maintain balance with gravity of wrong done by a person but also to make an example for others as a preventive measure for reformation of the society---Concept of minor punishment in law is to make an' attempt to reform individual wrongdoer---In service matters, the extreme penalty for minor acts depriving a person from right of earning defeats the reformatory concept of punishment in administration of justice.

2006 SCMR 60 rel.

Mugees Ahmed Samdani for Petitioner. Mazhar Jafri for Respondent No.2.

Date of hearing: 10th November, 2011.

2012 P L C (C.S.) 205

[Sindh High Court]

Before Gulzar Ahmad and Salman Hamid, JJ

Dr. MUHAMMAD MUZZAFFAR -

Versus

FEDERATION OF PAKISTAN MINISTRY OF PORT AND SHIPPING through Secretary and 3 others

Constitutional Petition No.D-1966 of 2010 and Misc. Nos.1505 and 7935 of 2011, decided on 13th October, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Removal from service---

Reinstatement---Back-benefits---Petitioner was employee of Port Trust, and was removed from service due to his absence without leave but reinstated after converting his leave into leave without pay---Petitioner sought recovery of back benefits on the ground that he remained unemployed during the period when he was out of service---Validity---Petitioner's reinstatement was on the consideration that period in which he remained out of employment of the Port Trust would be treated as leave without pay and that once it was treated as such and was also accepted by petitioner, he subsequently could not turn around and claim that he be given back-benefits---Petitioner's reinstatement being against the consideration of leave without pay, High Court in exercise of Constitutional jurisdiction declined to interfere in the matter---Petition was dismissed, in circumstances.

Lahore Development Authority and others v. Muhammad Naseem Kachloo and another 2006 SCMR 434 distinguished.

Wali-ur-Rehman and others v.' State Life Insurance Corporation and others 2006 SCMR 1076 and Khadim Hussain v. Muhammad Azam Sati 2007 CLC 404 SC (AJ&K) ref.

M.A.K. Azmati for Petitioner.

Nemo for Respondents Nos.l and 4.

M.A.G. Siddiqui for Respondents Nos.2 and 3.

Date of hearing: 14th September, 2011.

2012 P L C (C.S.) 249

[Sindh High Court]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

SONO

Versus

PROVINCE OF SINDH through Chief Secretary Government of Sindh

and 228 others

Constitutional Petitions Nos.D-150 of 2008,, D-584, D-1058, D-1063, D-1133 of 2009, D-3, D-117, D-339, D-929 of 2010 and D-554 of 2011, decided on 26th October, 2011.

(a) Constitution of Pakistan--- .

----Arts. 25 & 199---Constitutional petition---Civil service-Selection--Discrimination-Ban ination---Ban on recruitment---When advertisement was placed in the year, 2007; there was a ban on recruitment and test was held in that year; there was a ban when interviews were held in year, 2007; there was a ban when advertisement was placed in year, 2008 and there was a ban when- test was held in year, 2008---Ban was lifted in December, 2008 and then selection was made in respect of those candidates who competed in response to advertisement of-year, 2008, and those who had been selected in response to advertisement of year, 2007, were just not considered worthy of a look even---Validity---If advertisement placed during ban in year, 2008, could be acted upon, there was no reason why the advertisement placed during ban in year, 2007 could not be acted upon---If written test held in year 2008, during the ban could be acted upon after the ban was lifted, the same treatment should have been extended to test held in• response to advertisement of year, 2007---High Court directed the authorities to issue appointment letters to persons selected for recruitment through Departmental Selection Committee in response to advertisement of year, 2007---Petition was allowed accordingly.

Muhammad Rasheed v. Government of Punjab 2006 SCMR 1082; Muhammad Ismail v. Secretary Education, Government of Punjab 2000 PLC. (C.S.) 112; Secretary of Government of N.-W.F.P., C&W Department v. Jamal Abdul Nasir 2003 PLC (C.S.) 977; .Munir Ahmed v. Minister for Home and Tribal Affairs, Government of Balochistan, Quetta 2007 PLC (C.S.) 679; Dr. Marvi Shah v. Province of Sindh 2009 PLC (C.S.) 182; Muhammad Asghar Waseer v. Secretary, Local Government 2009 PLC (C.S.) 586; Asadullah Mangi v. Pakistan International Airlines Corporation 2005 SCMR 445 and Mustafa Lakhani v. Pakistan Defence Officers Housing Authority 2006 SCJ 702 distinguished.

Hameed Akhtar Niazi v. Secretary, Establishment Division 1996 SCMR 1185 fol.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Civil service---Selection---Vested right---Passing of written test---Factual controversy---Petitioners claimed appointment on the basis of passing of their written test and alleged that last page was subsequently and fraudulently added to result---Plea raised by authorities was that petitioners did not clear interview and were not selected---Validity---Candidates who failed in interview were not entitled to be taken into employment---Mere passing of written test did not confer right of recruitment because one had to clear viva voce also---Fraudulently adding last page to result was disputed question of fact, and the same could not be decided in exercise of Constitutional jurisdiction--Irregularities in respect of domiciles were also questions which could not be gone into in Constitutional proceedings---Authorities made clear statement that petitioners did not clear viva voce and failed to place on record any material to substantiate that they cleared the same---Recruitment of a particular candidate was lawful and proper or not was a question, if there were no disputed facts and could be sorted out through an appropriate writ in the nature of quo warranto---Primary grievance of petitioners was that they had not been recruited and High Court declined to interfere in the process of recruitment made by the authorities---Petition was dismissed in circumstances.

Safdar Ali Sahito v. Province of Sindh and 10`others 2011 PLC (C.S.) 956; Secretary Finance v. Ghulam Safdar 2005 SCMR 534; State Bank of Pakistan v. Franklin Credit and Investment Company Ltd. 2010 SCMR 121; Abdul Hafeez v. Board of Intermediate and Secondary Education 1983 SCMR 566 and Muhammad Rafique v. Abdul Ghafoor 1992 SCMR 1971 ref.

Abdul Ali v. Balochistan Public Service Commission 2010 PLC (C.S.) 853 and Asif Mahmood Chughtai v. Government of Punjab 2000 SCMR 966 rel.

Mukesh Kumar Karara for Petitioner (in C.P. No.D-150 of 2008).

Mian Mumtaz Rabbani for Petitioner (in C.P. No.D-584 of 2009).

Muhammad Iqbal Memon for Petitioner (in C.P. No.D-1058 of 2009).

A.R. FaruqPirzada for Petitioner (in C.P. No.D-1133 of 2009).

Ubedullah K. Ghoto for Petitioners (in C.Ps. Nos.D-1063 of 2009, D-3, D-117, D-339 of 2010 and D-554 of 2011).

Qurban Ali Malano for Petitioners (in C.P. No.D-929 of 2010).

Abdul Qayyum Shaikh for Petitioners (in C.P. No.D-117 of 2010).

A.M. Mubeen Khan and Imran Mobeen Khan for Excise Officials along with Munir Ahmed Zardari, Director, Excise and Taxation, Sukkur Region and G.M. Shah, ETO, Khairpur.

Bhajandas Tejwani and Manoj Kumar Tejwani for Private Respondents.

Liaquat Ali Shar, Addl. A.-G.

Dates of hearing: 27th and 28th September, 2011.

2012 P L C (C.S.) 447

[Sindh High Court]

Before Gulzar Ahmed and Salman Hamid, JJ

SHAMSUDDIN and 2 others

Versus

PAKISTAN BAIT-UL-MALL through Chairman and 3 others

Constitutional Petition No.D-596 of 2010, decided on 5th October, 2011.

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art.199---Constitutional petition---Back-benefits, payment of---Penalty of censure---Scope---Contention of petitioners was that Service Tribunal had directed reinstatement of service with payment of back-benefits and the same was maintained by the Supreme Court and petitioners had been denied of such payment---Contention of authorities was that fresh inquiry having been held against the petitioners, they were imposed with a penalty of censure---Validity---Payment of back-benefits to the petitioners was not made dependent on the result of fresh inquiry by the Tribunal and same having been maintained by the Supreme Court, there was no justification for non-payment of back-benefits to the petitioners---Penalty of censure by no means could deprive the petitioners from payment of back-benefits as it was merely a warming and that too had application from the date the office order was passed---Payment of back-benefits to one person who was amongst the petitioners as appellants before the Service Tribunal, was admitted by authorities and therefore there was no reason for denying payment of back-benefits to the petitioners---Incumbent on the authorities to have paid back-benefits to the petitioners and non - payment of the same was altogether an act of robbing petitioners of a right accrued under court order---Constitutional petition was accepted, in circumstances.

Syed Zafar Ali Shah for Petitioner.

Sadaqat Khan, Standing Counsel.

Rizwan Siddiqui along with Syed Mansoor M. Gardizi, Deputy Director (Legal) Pakistan Bait-ul-Mall for Respondents

Date of hearing: 21st September, 2011.

2012 P L C (C.S.) 489

[Sindh High Court]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ALTAF HUSSAIN

Versus

PROVINCE OF SINDH, through Secretary Education and Literacy Department, Sindh Secretariat, Karachi and 2 others

Constitutional Petition No.D-3066 of 2011, decided on 20th December, 2011.

Sindh Civil Servants Act (XIV of 1973)---

----S. 10---Constitution of Pakistan, Art.199---Constitutional petition---Transfer---Petitioner had challenged his transfer order---Transfer of civil servant was a matter of terms and conditions of employment, which could only be challenged before the Service Tribunal---Jurisdiction of High Court under Art.199 of the Constitution being barred, constitutional petition was not maintainable, which was dismissed, in circumstances.

Nazir Hussain v. N.-W.F.P. 1992 SCMR 1843 and Rukhsana Ijaz v. Secretary, Education 1997 SCMR 167 rel.

Maqbool Ahmed Awan for Petitioners.

Zulfiqar Ali Sangi for Respondent No.3.

Liaqat Ali Shar, Addl. A.-G. for Respondents.

2012 P L C (C.S.) 620

[Sindh High Court]

Before Faisal Arab and Imam Bux Baloch, JJ

MUHAMMAD ISMAIL and others

Versus

PROVINCE OF SINDH through Secretary, Education and Literacy Department, Karachi and others

Constitutional Petitions Nos.755 and 860 of 2010, decided on 7th July, 2011

(a) Civil service---

----Recruitment Policy 2008 for Appointment of Primary, Junior and Secondary School Teachers in Sindh Province---Selection criteria---Five factors requiring consideration being (i) minimum 60% marks obtained by a candidate in written test; (b) points scored for academic qualifications; (c) points scored for professional qualifications; (d) points awarded on account of being a female gender; and (e) place of domicile---Basis for preparation of merit-list would be cumulative of all marks and points obtained by a candidate for each such five factors after verification of their certificates/degrees of academic and professional qualifications---Obtaining 60% or above marks in written test would not be sole criteria for compilation of merit list---Candidate having procured highest aggregate marks and points would be listed first on merit list and then second highest procurer and so on till completion of appointments on advertised seats for a particular School/ Union Council---Due to non-disclosure/non-publishing of entire selection criteria in advertisement inviting applications, neither selection process could be said to be unfair nor court could compel employer not to apply its recruitment policy---Unsuccessful candidate, if still interested to have a career in teaching, would have to wait till occurrence of new vacancies---Principles.

(b) Civil service---

----Selection of an employee---Employer would have every right to fix minimum criteria for selecting an employee---Mere due to non-disclosure/non-publishing of entire selection criteria in advertisement inviting applications, neither selection process could be said to be unfair nor court could compel employer not to apply its recruitment policy.

(c) Constitution of Pakistan---

----Art. 19-A---Freedom of information---Scope---Access to information in matters of public importance would be right to every citizen---High Court emphasized on all recognized Institutions, Boards and Universities to place on their website necessary information of their students having successfully obtained certificates/degrees as to make convenient for all concerned to get immediately requisite information verified on internet before going into botheration of seeking verification from Boards, Universities and Institutions.

Rashid Mustafa Solangi for Petitioners (in C.P. No.D-755 of 2010).

Asif Ali Abdul Razak Soomro for Petitioners (in C.P. No.D-860 of 2010).

Abdul Hamid Bhurgri, Addl. A.-G. assisted by Ameer Ahmed Narejo, State Counsel.

Ali Azhar Tunio for Respondent No.4 (in C.P. No.D-755 of 2010).

Date of hearing: 13th May, 2011.

2012 P L C (C.S.) 630

[Sindh High Court]

Before Muhammad Athar Saeed and Munib Akhtar, JJ

SHAFQAT ALI

Versus

GOVERNMENT OF SINDH through Chief Secretary, Sindh and 3 others

C.M.A. No.670 of 2010 in Constitutional Petition No.D-542 of 2009, decided on 29th November, 2010.

Review---

----Civil service---Appointment of son of deceased employee---Certain benefits of appointment were given to the children of deceased personnel of the department under notification issued in 2002---Petitioner, whose father had died somewhere in 1986 filed constitutional petition for his appointment as JST, which petition was accepted and High Court in view of said notification directed the authorities to appoint the petitioner if he possessed basic qualification necessary for such appointment---Authorities, filed review application against said order of the High Court, contending that said notification did not have retrospective effect---Validity---Notification had retrospective effect and if law had not been properly applied by High Court, the only remedy available to the authorities was to file a civil petition for leave to appeal before the Supreme Court; as point in question did not fall within the three basic ingredients on which review could be filed---Application for review was dismissed.

Petitioner in person.

Saifullah, Asstt. A.-G. Sindh for Respondents.

2012 P L C (C.S.) 636

[Sindh High Court]

Before Muhammad Athar Saeed and Irfan Saadat Khan, JJ

Mrs. SOHAILA SHAHZAD

Versus

FEDERATION OF PAKISTAN through Secretary M/o Information Technology, I.I. and Telecom Division and 4 others

Constitutional Petitions Nos.D-1613 to 1618, 1412 and 1880 of 2006, decided on 3rd August, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment, transfer and termination of service---Petitioner was appointed in Grade E.1 in a unit of Corporation and was promoted to Grade E-2 and then to Grade E-3---Subsequently some subsidiary companies were merged in the employer Corporation and came under the control of Chairman, thereof---Petitioner was permanently transferred to one of the merged companies and she had accepted her said permanent transfer and joined said transferee company without any objection thereto---Subsequently transferee company terminated the services of the petitioner and on said termination, the petitioner submitted her joining report to parent Corporation from where she was transferred, but she was not allowed to join---Validity---No Statutory Service Rules of the Corporation were on record and question as to whether petitioner who was permanently transferred, could claim any lien in respect of her service from the Corporation, where terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the institution or body, in which the petitioner was employee, had issued for its internal use, in violation thereof could be enforced through constitutional petition---In view of the fact that no statutory regulations existed in that regard, grievance of the petitioner appeared to be her individual grievance, which could only be decided on its merits---If any adverse action was taken by the employer in violation of the statutory rules, only then action amenable to constitutional jurisdiction, would arise---If there were no statutory rules, then the principle of master and servant would be applicable; and such employee had to seek remedy before the court of competent jurisdiction---Held, remedy for the petitioner in that regard was only available to the extent of claim of damages and not otherwise.

Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence PLD 2006 SC 602; Muhammad Mobin-ul-Islam v. Federal Government 1998 PLC (C.S.) 400; Province of West Pakistan v. Deen Muhammad and others PLD 1964 SC 21; Khan Faizullah Khan v. Government of Pakistan PLD 1974 SC 291; The Lahore Central Co-Operative Bank Ltd. v. Pir Saif Ullah Shah PLD 1959 SC 210; Chairman East Pakistan Development Corporation v. Rustam Ali and others PLD 1966 SC 848; Abdul Rehman v. Federation of Pakistan 2010 PLC (C.S.) 692; Executive Engineer Lahore v. Muzzaffar-ul-Haq 2000 SCMR 656; Messrs Rasu Food Industries v. Messrs Pakistan Industrial Leasing Cooperation Limited 2005 SCMR 1643; Bolan Bank Limited v. Capricon Enterprises 1998 SCMR 1961; Chairman SLIC v. Humuyun Irfan 2010 PLC (C.S.) 1183; Mahar Ali v. Federation of Pakistan 1992 SCMR 435; Secretary Education v. Wiqar-ul-Haq 2000 SCMR 1780; Dr. Malik Maroof Imam v. Federation of Pakistan 2008 PLC (C.S.) 671; P.I.A.C. v. Shehzad Farooq Malik 2004 SCMR 158; P.I.A.C. v. Nasir Jamal Malik 2001 PLC (C.S.) 890; Mrs. M.N. Arshad v. Ms. Naeema Khan PLD 1990 SC 612; Sher Shah Industries v. Government of Sindh PLD 1982 Kar. 653; PTCL v. Muhammad Zahid 2010 SCMR 25; Anisa Rehman v. P.I.A.C. 1994 SCMR 2232; P.I.A.C. v. Tanveer-ur-Rehman PLD 2010 SC 676 and Pakistan Telecommunication v. lqbal Nasir PLD 2011 SC 132 ref.

Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 and Pakistan International Airline Corp. and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 rel.

Sadaqat Khan, Standing Counsel for Respondents Nos.1 to 3.

Masood Ahmed Khan for Respondent No.4.

Nemo for Respondent No.5.

Date of hearing: 2nd June, 2011.

2012 P L C (C.S.) 657

[Sindh High Court]

Before Sajjad Ali Shah and Muhammad Ali Mazhar, JJ

SHAKEEL AHMED SHAIKH and 2 others

Versus

PROVINCE OF SINDH through Chief Secretary, Sindh and 3 others

Constitutional Petition No.D-387 of 2011, decided on 3rd June, 2011.

Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act (IX of 2010)---

----Ss. 3, 5, 6, 9 & 14---Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974, R. 9---Constitution of Pakistan, Art.199---Constitutional petition---Assistant District Public Prosecutor in Criminal Prosecution Service, Sindh---Transfer of petitioner to another District by order of Prosecutor General---Petitioner's plea that power to pass impugned order vested in Chief Secretary and not Prosecutor General---Validity---According to S.5 of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2010, control and administration of such service vested in Prosecutor General as its head, while Government had power to exercise general superintendence over such service---Section 9 of the Act provided that Prosecutor General was responsible for conduct of prosecution on behalf of Government---Expression "administration" presupposed management or executive duties of an institution---Effective management or executive duties of an institution could not be performed effectively without an administrator or executive of an institution equipped with complete power and control over members of institution including disciplinary powers---Words "administration of the Service" preceded by words "vest in the Prosecutor General" as used in S.5(2) of the Act, if read together, would in strong terms convey absolute administration in him as sole custodian of such service with all powers to effectuate its administration over service including power to transfer member/staff of service for being best judge to post members according to their experience/expertise---High Court dismissed constitutional petition in circumstances.

Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Razia Sultana v. Razia Begum PLD 2003 Lah. 27 rel.

(b) Words and phrases---

----"Control"---Definition.

Black's Law Dictionary; The Chambers 21st Century Dictionery; State of West Bengal. v. Nripendra Nath AIR 1966 SC 447; Corporation of the city of Nagpur v. Ramchandra G. Modak and others AIR 1984 SC 636; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 and Razia Sultana v. Razia Begum PLD 2003 Lah. 27 rel.

(c) Words and phrases---

----"Administration"--- Definition and connotation--- Expression "administration" presupposed management or executive duties of an institution---Effective management or executive duties of an institution could not be performed effectively without an administrator or executive of an institution equipped with complete power and control over members of institution including disciplinary powers.

Black's Law Dictionary and The Chambers 21st Century Dictionary ref.

Noor-ul-Haq Qureshi for Petitioners.

Allah Bachayo Soomro, Addl. A.-G. for Respondent No.1.

Shahadat Awan, Prosecutor General, Sindh for Respondents Nos.2 to 4.

Date of hearing: 13th April, 2011.

2012 P L C (C.S.) 708

[Sindh High Court]

Before Amir Hani Muslim and Abdul Hadi Khoso, JJ

MUJEEBUR REHMAN and 24 others

Versus

PROVINCE OF SINDH through Secretary Education, Education Department, Government of Sindh and 3 others

Constitutional Petition No.D-11 of 2010, decided on 8th July, 2010.

Sindh Civil Servants Act (XIV of 1973)---

----S. 17 ---Constitution of Pakistan, Art. 199---Constitutional petition---Civil service---Non-payment of salaries on ground of unauthorized appointment---Validity---Admitted position that the petitioners were still working in the Department and salaries had not been released to them on the intervention of the Finance Department---As long as a person after appointment was working in the Department, his salary could not be stopped---Instruction of the Finance Department to withhold salaries of the petitioners without their removal from service in accordance with the law, was contrary to the law of civil servants---High Court directed the authorities to release salaries to the petitioners and continued payment of salaries to them as long as they were not removed from the Department in accordance with the law---Constitutional petition was disposed of accordingly.

Muhammad Sulleman Dahri for Petitioners.

Allah Bachayo Soomro, Addl. A.-G. Sindh with Mir Osaf A. Talpur, Additional District Accounts Officer, Tando Allahyar and Mirza Imam Ali Baig, Regional Director Colleges for Respondents.

2012 P L C (C.S.) 889

[Sindh High Court]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

HAFEEZULLAH and another

versus

PROVINCE OF SINDH through Secretary, Irrigation and Power Department

Sindh Secretariat, Karachi and 3 others

Constitutional Petition No.1259 of 2009, decided on 21st December, 2011.

Sindh Civil Service (Appointment, Promotion and Transfer) Rules, 1974---

----R. 11-A [as amended with effect from 17-7-2009]---Constitution of Pakistan, Art.199---Constitutional petition---Application for appointment of sons on the basis of son quota---No decision on application was communicated to the applicants by the authorities---Contention of counsel for the authorities was that in terms of amended R.11-A of Sindh Civil Service (Appointment, Promotion and Transfer) Rules, 1974, period of two years had been provided; with effect from 17-7-2009, which was the date of amendment of said Rules, whereas in case of death of fathers of the applicants had occurred in the years 2002 and 2006 respectively, their case was not covered by amended R.11-A of the Rules---Amendment was brought about on 17-7-2009 and notification of amendment would operate only prospectively---Vested right could be taken away retrospectively only through an amendment passed by an Assembly or Parliament, but not through subordinate legislation---Change in R.11-A of the Rules had been brought about through a notification, same could only have prospective effect---Notification issued on 17-7-2009 would become applicable from 17-7-2009 onwards only---Constitutional petition was allowed with direction to authorities to issue letters of appointment of the petitioners within a period of one month.

Irrigation and Power Employment Union v. Province of Sindh and others C.P.No.D­-611 of 2009 rel.

Noor Hassan Malik for Petitioners.

Imtiaz Ali Soomro, Asstt. A.-G. along with Rashid Ahmed Gabool, Asstt. Executive Engineer, Tube-well Division Ghotki for Respondents.

2012 P L C (C.S.) 915

[Sindh High Court]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MUHAMMAD AZEEM

versus

EXECUTIVE DISTRICT OFFICER (HEALTH), GHOTKI AT MIRPUR MATHELO and 2 others

Constitutional Petition No.D-2797 and C.M.A. No.9830 of 2011, decided on 21st February, 2012.

Sindh Civil Servants (Appointment, Promotion and Transfer) Rules, 1974---

---R. 11-A---Constitution of Pakistan, Art.199---Constitutional petition---Appointment---Petitioner's father was working as chowkidar in the Health Department and upon his death during service, petitioner applied for his employment, and subsequently was appointed---Appointment order of petitioner was cancelled by the respondent-authority on grounds that he did not complete the formalities as provided by law---Validity---Authorities on the one hand admitted that petitioner's father was working as chowkidar and had expired during his service, and that application of petitioner for appointment was forwarded by the channel of Authority, but on the other hand cancellation order stated that petitioner was appointed without completing all codal formalities---Cancellation order did not state a single word as to which formality was not completed by the petitioner---Petitioner was entitled to be appointed and was rightly appointed---Constitutional petition was allowed, and cancellation order by Authority was set aside and High Court directed to allow the petitioner to join his duty within two weeks in terms of his appointment order.

Zulfiqar Ali Sangi for Petitioner.

2012 P L C (C.S.) 968

[Sindh High Court]

Before Munib Akhtar and Syed Hasan Azhar Rizvi, JJ

PIYAR ALI GADIWAN

Versus

PROVINCE OF SINDH through Chief Secretary and 5 others

Constitutional Petitions Nos.D-715 and 2094 of 2011, decided on 9th March, 2012.

(a) Sindh Water Management Ordinance (XL of 2002)---

----Preamble---Authorities, working of---Scope---Various entities under Sindh Water Management Ordinance, 2002, are to act in complementary manner and may be linked to interlocking parts of the statute to act in its own right and independently take its own decisions---Sindh Water Management Ordinance, 2002, is a complete code in itself, which is to operate without any outside interference or control, including that of government.

(b) Sindh Water Management Ordinance (XL of 2002)---

----Ss. 29 & 34---Constitution of Pakistan, Art.199---Constitutional petition---Acting Director, appointment of---Power of government---Scope---Petitioners assailed appointment of Directors of different Area Water Boards, made by government---Validity---Government had power to appoint Acting Director from time to time in respect of Area Water Board but such power stood exhausted immediately on whichever of the two events happened first, namely, the Area Water Board concerned itself had appointed Director or deadline of 30-6-2005 was reached---Once either one of the two events had occurred, government no longer had power to appoint the Acting Director---Directors of three Area Water Boards were not appointed till year, 2011, power of government to appoint Acting Director stood exhausted on 30-6-2005---All appointments made after date in question were irregular, if not unlawful---High Court declared appointment of Directors to be without lawful authority and quashed the same, as Chief Minister or Provincial Government had no authority under the provisions of Sindh Water Management Ordinance, 2002, to be involved in or to undertake or to approve at any such stage appointment of a Director of Area Water Board---High Court directed concerned Area Water Board's to appoint Directors of their Boards in accordance with law---Petition was allowed accordingly.

Hafiz Hamdullah v. Saifaullah Khan and others PLD 2007 SC 52; Abdul Qayoom and others v. Province of Sindh and others C.P.No.D-906 of 2010 and Mujahid Ali Mansoori and others v. University of Punjab and others 2005 PLC (C.S.) 694 distinguished.

(c) Administrative law---

----Statutory power, exercise of---Principles.

(d) Administration of justice---

---Statutory provisions, violation of---Effect---Anything which is contrary to express provisions of statute must also be set aside on simple application of settled principles of statutory interpretation.

(e) Court---

---Duty---Domain of a Court of law is legal framework established by statute concerned---If process adopted is legally faulty and inconsistent with or unsustainable in the light of relevant statutory provision, then it must be set aside as a matter of law.

Syed M. Saulat Rizvi for Petitioner (in C.P. No.715 of 2011).

Wali Muhammad Khoso for Petitioner (in C.P. No.2094 of 2011).

Barrister Zamir Ghumro for SIDA (in both petitions) and Respondents Nos.3 to 5 in C.P. No.2094 of 2011 along with Khurram Aziz Shaikh, Secretary, SIDA.

M. Suleman Unnar for Respondent No.6 (in C.P. No.2094 of 2011).

Allah Bachayo Soomro, Addl. A.-G.

Dates of hearing: 25th January and 1st February, 2012.

2012 P L C (C.S.) 996

[Sindh High Court]

Before Maqbool Baqar and Shahid Anwar Bajwa, JJ

Dr. PIRZADA JAMALUDDIN A. SIDDIQUI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Education and 4 others

Constitutional Petition No.D-3163 and C.M.A. No.12668 of 2010, decided on 6th April, 2011.

(a) Centre of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1997---

----Sched.---Centre of Excellence Act (XXIV of 1974)---Constitutional petition---Vacant post of Director (BS-21), Centre of Excellence in Marine Biology, University of Karachi---Prescribed qualification for such post being Ph.D. in related field with 5 years teaching experience as Professor with 8 research publications or 20 years teaching and research experience in recognized University etc. including 3 years as Professor/Director with 8 research publications in journals of international repute---Appointment of respondent on such post on recommendations of Selection Committee with approval of Prime Minister without consultation with Higher Education Commission and Vice-Chancellor---Validity---­Federal Government could make such appointment with consultation of Higher Education Commission and Vice-Chancellor---Respondent had never remained a Professor or Director, thus, had not met qualification as prescribed in Schedule of Centre of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1997---­Departmental Authority or competent authority having discretion to decide a particular matter could not act in violation of laid down rules and laws---High Court set aside notification of appointment of respondent in circumstances.

(b) Centre of Excellence Act (XXIV of 1974)---

----S. 10---Rules of Business (Federal), 1973, Rr.14, 15 & 18---Amendment of---Centre of Excellence Employees (Service, Appointment, Promotion and Transfer) Rules, 1997---Office Memorandum dated 6-3-2007 issued by Ministry of Education and published in Gazette dated 28-4-2010 without consultation with Law, Justice and Human Rights Division or approval of Prime Minister---Validity---Relevant notification did not find mention to have amended the Rules---Rules could not be amended by mere notification by any particular Ministry---Such notification having not been duly processed through Law, Justice and Human Rights Division nor any summary having been placed before Prime Minister for amending relevant rule contained in the Rules such notification not being a valid statutory instrument could not have effect of amending relevant provisions of Rules, in circumstances.

(c) Interpretation of statutes---

----Amendment of Rules---Procedure---Relevant notification did not find mention to have amended the Rules---Rules could not be amended by mere notification by any particular Ministry---Such notification having not been duly processed through Law, Justice and Human Rights Division nor any summary having been placed before Prime Minister for amending relevant rule contained in the Rules such notification not being a valid statutory instrument could not have effect of amending relevant provisions of Rules, in circumstances.

(d) Civil service---

----Selection of a particular person for a particular post---Powers of Departmental Selection Authority or competent authority and Court---Scope---Only competent authority could make such selection---Court could not substitute its opinion and assume to itself role of Departmental Authority or competent authority---Departmental Authority or competent authority having discretion to decide a particular matter could not act in violation of laid down rules and laws.

Shaikh Zayed Hospital and Post Graduate Medical Institutes through Chairman and Dean and another v. Dr. Muhammad Saeed and another 2010 PLC (C.S.) 967 and Wallayat Ali Mir v. Pakistan International Airlines Corporation through its Chairman and another 1995 SCMR 650 rel.

(e) Discretion---

----Authority or functionary having discretion to decide a particular matter could not act in violation of laid down rules and laws---Principles.

Where the law clothes departmental authority or functionary with discretion to decide a particular matter, it never intends to leave departmental authority or functionary with absolute liberty to act in violation of laid down rules and laws. However, person with discretion should be allowed to move freely like waters of a river, he has to be circumscribed and guided by strong banks of law, justice and equity. If discretion is not controlled by law, justice and equity, it becomes a power akin to power of dictatorship.

Malik Naeem Iqbal for Petitioner.

Mian Khan Malik D.A.-G. for Respondent No.1.

Moin Azhar Siddiqi for Respondent No.3.

Ansari Abdul Latif for Respondent No.5.

2012 P L C (C.S.) 1018

[Sindh High Court]

Before Shahid Anwar Bajwa and Tufail H. Ebrahim, JJ

SALAHUDDIN MUGHAL

Versus

PROVINCE OF SINDH through Chief Secretary/ Chairman and 2 others

C.P. No.D-2410 of 2010, decided on 7th December, 2010.

Sindh Civil Servants Act (XIV of 1973)---

----S. 9---National Accountability Ordinance (XVIII of 1999), S.10---Constitution of Pakistan, Art.199---Constitutional petition---Promotion, deferment of---Petitioner who was promoted as Deputy Director, was senior most---Working paper regarding promotion to the post of Joint Director was prepared and was placed before Selection Board---Selection Board in its meeting deferred promotion of the petitioner for the reason that a number of enquiries were pending against the petitioner; and that NAB reference was pending against him---Prima facie any NAB reference, could not be ground for denying consideration of case of civil servant, because in NAB reference, a particular set of punishment had been provided; and punishment were not akin to punishments prescribed under Efficiency and Discipline Rules---Departmental Authorities could initiate domestic proceedings, but authorities chose not to do so---Criminal Trial had no nexus with domestic proceedings---Pendency of reference before NAB, would not debar a civil servant for being considered for promotion---Department was directed to consider case of the petitioner for promotion in accordance with law.

Dr. Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others 2008 SCMR 1535; Secretary Revenue Division and others v. Muhammad Saleem 2008 SCMR 948; Faqir Muhammad v. Secretary to Government of Punjab, Agriculture Department, Punjab, Lahore and others 2009 SCMR 405; Government of Pakistan through Establishment Division Islamabad and 7 others v. Hameed Akhtar Niazi Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110 ref.

Khalid Imran and Shehzad Wilson for Petitioner.

Adnan Karim, Addl. A.-G. for Respondents.

Date of hearing: 12th November, 2010.

2012 P L C (C.S.) 1037

[Sindh High Court]

Before Maqbool Baqar and Shahid Anwar Bajwa, JJ

MUHAMMAD NAWAZ ABBASI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Labour Manpower and Overseas Pakistanis, Islamabad and 4 others

Constitutional Petition No.D-3515 of 2010, decided on 1st April, 2011.

Sacked Employees (Reinstatement) Act (XXII of 2010)---

----Ss. 2(f) & 3---Constitution of Pakistan, Arts.199 & 75---Constitutional petition---Termination of service---Employment of the petitioner was terminated after about two years of his appointment---Immediately after the termination he was employed on the same post on contract basis, but was again dismissed from service---After promulgation of Sacked Employees (Reinstatement) Act, 2010 petitioner who fell within the definition of "sacked employees" as contained in S.2(f) of the Act, having not been reinstated in service, he filed constitutional petition---Maintainability of petition was objected to on the grounds that Authority did not have, statutory rules of service and on the ground of limitation---Petitioner had not put forward any claim in respect of any of terms and conditions of his employment but had claimed that Sacked Employees (Reinstatement) Act, 2010 conferred upon him right and the obligation on employer Foundation to act in accordance with provisions contained in said statute in respect of employment of his service--- Sacked Employees (Reinstatement) Act, 2010, which came into force on 6-12-2010, received assent of the President on 6-12-2010 and was published in the Gazette on 8-12-2010---In terms of Art.75 of the Constitution it came into force on 6-12-2010 and application under S.3(1) of Sacked Employees (Reinstatement) Act, 2010 had been made within a period 90 days of 6-12-2010, which period of 90 days expired on 7-3-2011---Constitutional petition was filed on 9-6-2010---Petitioner, in circumstances was entitled to exclusion of period---Case of the petitioner was not barred by S.3(1) of Sacked Employees (Reinstatement) Act, 2010---Employer Foundation was directed to reinstate the petitioner in terms of provisions contained in Sacked Employees (Reinstatement) Act, 2010 and grant him benefits in accordance with provisions of said Act.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Nasiruddin Ghori v. Federation of Pakistan through Secretary and 4 others 2010 PLC 323; Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Shahid Mehmood Usmani v. House Building Finance Corporation through Managing Director and others 2010 PLC (C.S.) 1360 and Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220 ref.

Naveed Ali Khokhar for Petitioner.

Mian Khan Malik, D.A.-G. along with Irfan Farooq, Law Officer of Respondent No.2.

2012 P L C (C.S.) 1091

[Sindh High Court]

Before Salman Hamid, J

MUHAMMAD ASHRAF SANGRI

Versus

FEDERATION OF PAKISTAN through Establishment Division, Islamabad and 2 others

Miscellaneous Appeal No.39 of 2011, decided on 11th January, 2012.

Federal Public Service Commission Ordinance (XLX of 1977)---

----S. 7---Rules for Competitive Examination, (CSS) 2010, R.18---Guidelines Competitive Examination for 2008, R.6(F)---Declaring a candidate unsuccessful merely on account of failure in viva voce---Appeal to Commission---Appellant (candidate) had appeared in Competitive Examination---Candidate secured highest marks in the written test and also succeeded in medical examination or Psychological Assessment---Despite that achievement appellant was declared fail in viva voce without any reason---Three Members and Chairman in the Board conducted viva voce---Two Members passed the appellant, while one of the members and the Chairman declared him failed---At the time of viva voce entire record of both academic and extra mural was available with the Commission and appellant was asked question on matter of general interest, the object of it was to assess the suitability for the service for which he had entered for---Person who had secured highest marks in written test and also passed all other examinations, which were basically planned to assess the ability and attitude, personality with regard to his aptitude for the civil service, Chairman and one Member, had not exercised the discretion in the manner and conducive for competitive Examination---Chairman and the Member had to look at the overall performance of the appellant, but same had not been done in the case of appellant---Chairman and the Member in testing the appellant had not exercised the discretion in a manner it ought to have been exercised, which was in violation of R.6(F) of Guidelines for Competitive Examination, 2008 and overall performance of the appellant was not looked into and was ignored---No right under the law guaranteed under the Constitution could be waived or acquiesced---Appellant had every right to challenge the orders, more particularly when according to him same were outcome of indiscretion exercised by competent authority---Impugned orders were set aside and authorities were directed to declare the appellant fit for appointment as civil servant, in circumstances.

PLD 2011 SC 37; PLD 2011 SC 927; Tariq Azizuddin and other's case 2010 SCMR 1301 and Irfan Naseer Baig and another v. Province of Punjab through Secretary S&GAD and 2 others 2011 PLC (C.S.) 1537 ref.

Irfan Naseer Baig and another v. Province of Punjab through Secretary S&GAD and 2 others 2011 PLC (C.S.) 1537 and Amanullah Khan and others v. The Federation of through Secretary, Ministry of Finance Islamabad and others PLD 1990 SC 1092 rel.

Abid S. Zuberi and Muhammad Umar Lakhani for Appellant.

Pir Riaz Muhammad Shah Standing Counsel for Respondents.

Date of hearing: 20th December, 2011.

2012 P L C (C.S.) 1135

[Sindh High Court]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

MAQSOOD ALI

Versus

GOVERNMENT OF SINDH through Secretary Local Government Department and 2 others

Constitutional Petitions Nos.D-3406 of 2011 and D-117 of 2012, decided on 22nd February, 2012.

(a) Notification---

----Nature---Notification is always prospective in nature and cannot be retrospective in operation.

(b) Interpretation of statutes---

----Change in legislation---Scope---Pre-knowledge of any impending change in legislation not possible.

(c) Sindh Council Unified Grade Service Rules, 1982-

----R. 4(2)(ii)---Constitution of Pakistan, Art.199---Constitutional petition---Recruitment---Petitioners applied for certain posts in Local Government under Sindh Unified Grade Service---Plea raised by petitioners was that recruitment could only be made by resorting to Sindh Public Service Commission---Validity---Petitioners were not civil servants, therefore, despite notification dated 2-1-2012, appointment could not be made upon recommendation of Public Service Commission---When the process of recruitment was initiated and interviews were held and selection process was completed, Sindh Local Government Board was not competent to initiate or complete the process---High Court directed Sindh Local Government Board to comply with strict criteria laid down in R.4(2)(ii) of Sindh Council Unified Grade Service Rules, 1982, in respect of making recommendations after such examination or test and interview as could be conducted by it---Petition was allowed accordingly.

Dr. Naveeda Tufail v. Government of Punjab 2003 SCMR 291; Shoukat Ali v. Federal Public Service Commission 2010 PLC (C.S.) 455; Shaikh Zayed Hospital and Post Graduate Medical Institutes v. Dr. Muhammad Saeed 2010 PLC (C.S.) 967; Dr. Pirzada Jamaluddin Siddiqui v. Federation of Pakistan SBLR 2011 Sindh 1143; Imran Hussain v. Water and Power Development Authority PLD 2010 SC 546; 2011 PLC (C.S.) 548; Ehsan Ullafi v. Inspector-General of Police, Punjab, Lahore 2006 PLC (C.S.) 964; Madhya Pardesh Public Service Commission v. Navnit Kumar Potdar AIR 1995 SC 77; Fazal Ahmed Samtio v. Province of Sindh 2010 PLC (C.S.) 215; Miss Ambreen Ashraf v. Federal Public Service Commission 2004 PLC (C.S.) 159; Syed Muhammad Amin v. Federal Public Service Commission 2002 PLC (C.S.) 1538; Irfan Ali v. Chairman, District Zakat Committee, Khairpur PLD 2005 Kar. 434; Executive District Officer (Revenue), District Khushab v. Ijaz Hussain 2011 SCMR 1864 and Deedar v. Federation of Pakistan 2011 PLC (C.S.) 203 ref.

N.-W.F.P. Public Service Commission v. Muhammad Arif 2011 SCMR 848; Secretary. Finance v. Ghulam Safdar 2005 SCMR 534 and Muhammad Riaz Bhatti v. Federation of Pakistan 2004 SCMR 1120 distinguished.

Petitioner in Person (in C.P. No.D.3406 of 2011).

Zulfiqar Ali Sangi for Petitioner (in C.P. No.D-117 of 2012).

M.M. Aqil Awan for Respondent No.1 (in C.P. No.D-3406 of 2011).

Liaquat Ali Shar, Addl. A.-G.

Date of hearing: 8th December, 2012.

2012 P L C (C.S.) 1161

[Sindh High Court]

Before Imam Bux Baloch and Nisar Muhammad Shaikh, JJ

Mst. MEHRUN NISA and 2 others

Versus

PROVINCE OF SINDH through Secretary, (Education), Government of Sindh and 4 others

Constitutional Petition No.D-1203 of 2009, decided on 26th May, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Teacher in Education Department---Non-passing of petitioner's salary bill by Executive District Officer (EDO) (Finance)---Petitioner's plea that he was appointed in year 1993 after completing codal formalities and was serving in Department since then, when from January 2007 his pay bills found by competent authority to be genuine were withheld by EDO (Finance) alleging his appointment to be bogus---Validity---EDO (Finance) had no power or authority to refuse to pass such salary bills---­Petitioner was serving in Department, thus, he had vested right to be paid his salary---If appointment of petitioner was fake, then Department should have taken action against him---­Department had not issued any show cause to petitioner according to Sindh Civil Servants (Efficiency and Discipline) Rules, 1973---High Court directed EDO (Finance) to release salary bills of petitioner within two weeks.

Inayatullah Morio for Pettioners.

Abdul Hamid Bhurgari, Addl. A.-G. with Miss Rubina Dhamrah, State Counsel for Respondents.

2012 P L C (C.S.) 1176

[Sindh High Court]

Before Shahid Anwar Bajwa and Muhammad Ali Mazhar, JJ

ZULFIQAR ALI DOMKI and another

Versus

PROVINCE OF SINDH through Secretary Local Government Department, Government of Sindh, Karachi and others

Constitutional Petitions Nos.D-3406 of 2011 and D-117 of 2012, decided on 22nd February, 2012.

(a) Notification---

----Operation---Scope---Notification was always prospective in nature and could not be retrospective in operation.

(b) Sindh Council Unified Grade Service Rules, 1982---

----R. 4(2)(ii)---Constitution of Pakistan, Art.199---Constitutional petition--- Appointment--- Interview of candidates--- Ingredients---Authority was to decide as to what should be the ingredients of selection process in terms prescribed in R.4(2)(ii) of Sindh Council Unified Grade Service Rules, 1982---Even if the Authority decided not to conduct written test, even then it had to stick to a structure and scientific interview; and not a casual and superficial one, and in such a situation it would be relevant to see as to how much time was given to each candidate---For interview on which career of an individual depended on, and conduct of Government Officers, could not be allowed to be casual, perfunctionary and purely subjective---When the process was initiated and when the interviews were held and selection process completed, Sindh Local Government Board was not competent to initiate or complete the process---Board must comply with the strict criteria laid down in R.4(2)(ii) Sindh Council Unified Grade Service Rules, 1982 in respect of making recommendations "after such examination or test and interview as may be conducted by it".

Dr. Naveeda Tufail v. Government of Punjab 2003 SCMR 291; Shoukat Ali v. Federal Public Service Commission 2010 PLC (C.S.) 455; Shaikh Zayed Hospital and Post Graduate Medical Institutes v. Dr. Muhammad Saeed 2010 PLC (C.S.) 967; Dr. Pirzada Jamaluddin Siddiqui v. Federation of Pakistan SBLR 2011 Sindh 1143; Imran Hussain v. Water and Power Development Authority PLD 2010 SC 546; PLJ 2011 Quetta 63; Ehsan Ullafi v. Inspector-General of Police, Punjab, Lahore 2006 PLC (C.S.) 964; Madhya Pardesh Public Service Commission v. Navnit Kumar Potdar AIR 1995 SC 77; Muhammad Riaz Bhatti v. Federation of Pakistan 2004 SCMR 1120; Fazal Ahmed Samtio v. Province of Sindh 2010 PLC (C.S.) 215; Miss Ambreen Ashraf v. Federal Public Service Commission 2004 PLC (C.S.) 159; Irfan Ali v. Chairman, District Zakat Committee, Khairpur PLD 2005 Kar. 434; Executive District Officer (Revenue), District Khushab v. Ijaz Hussain 2011 SCMR 1864 and Deedar v. Federation of Pakistan 2011 PLC (C.S.) 203 ref.

N.-W.F.P. Public Service Commission v. Muhammad Arif 2011 SCMR 848; Secretary Finance v. Ghulam Safdar 2005 SCMR 534 and Syed Muhammad Amin v. Federal Public Service Commission 2002 PLC (C.S.) 1538 distinguished.

Petitioner in person (in C.P.D-3406 of 2011).

Zulfiqar Ali Sangi for Petitioners (in C.P.D-117 of 2012).

M.M. Aqil Awan for Respondent No.1 (in C.P.D-3406 of 2011).

Liaquat Ali Shar, Addl. A.-G. for Respondents.

Date of hearing: 8th February, 2012.

2012 P L C (C.S.) 1205

[Sindh High Court]

Before Maqbool Baqar and Shahid Anwar Bajwa, JJ

SAMIULLAH NAREJO

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Defence, Rawalpindi and 2 others

Constitutional Petition No.D-2354 of 2010, decided on 22nd March, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Offer for appointment as Cadet Pilot---Failure to act upon letter of offer of appointment---Petitioner in response to advertisement for the job of Cadet Pilot, underwent written test and was duly interviewed and thereafter offer for appointment as Cadet Pilot was given to the petitioner---Medical examination took place and there appeared to be some medical issues---Doctor's certificate that though petitioner would require regular follow-up, he was a fit person to fly---Letter of offer of employment was not acted upon by the Airline Corporation---Validity---Corporation did not have statutory rules---If there were no statutory rules, then relationship, between the parties would be that of Master and Servant---One of the essential and fundamental precepts of relationship of Master and Servant was that servant could not be thrusted upon an unwilling master; whether such thrusting was sought by setting aside of termination or by ordering initial appointment, would be immaterial in that regard---Constitutional petition being not maintainable, was dismissed, in circumstances.

Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Wilayat Ali Mir v. Pakistan International Airlines Corporation 1995 SCMR 650; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232 and Nouman Bashir Khan v. Federation of Pakistan and another SBLR 2011 Sindh 218 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Factum that aggrieved party would have no other legal remedy simpliciter, could not bring his case under Art.199 of the Constitution, if it did not fall otherwise within the compass of Art.199.

Muhammad Ikram Chaudhary and others v. Federation of Pakistan and others PLD 1998 SC 103 and Muhammad Iqbal and others v. Lahore High Court through Registrar and others 2010 SCMR 632 rel.

Mansoor-ul-Haq Solangi for Petitioner.

Khalid Javed for Respondents Nos.2 and 3.

2012 P L C (C.S.) 1232

[Sindh High Court]

Before Amir Hani Muslim and Irfan Saadat Khan, JJ

Syed IMTIAZ ALI SHAH and 4 others

Versus

GOVERNMENT OF SINDH through Chief Secretary, Karachi and 6 others

Constitutional Petition No.D-1491 and M.A. No.6260 of 2010, decided on 14th December, 2010.

Sindh Civil Servants Act (XIV of 1973)---

----S. 10---Constitution of Pakistan, Arts.199 & 240---Constitutional petition---Postings and transfers---Out of cadre postings---Exigency of service---Petitioner assailed posting of respondent on deputation basis under the garb of exigency---Validity---Appointments and conditions of services of a person, under Art.240 of the Constitution, could be determined by Act of Parliament or Provincial Assembly---Terms and conditions of a civil servant could not be deviated from by an Administrative / Executive order---Competent authority had posted civil servant to post in question under the garb of exigency and such order of competent authority had no sanction of law---To improve working of departments, High Court recommended that postings of such nature should be discouraged and respect should be given to law and rules in order to minimize unrest among the officers of department who suffered and were deprived of their lawful right to promotion or otherwise---Postings of officers on deputation basis were not in conformity with judgment of Supreme Court---High Court directed the authorities to immediately take steps to withdraw all officers posted either on the basis of deputation or on transfer out of their cadre and posted to different cadre posts in different departments and to repatriate such officers to their parent departments in Federal Government or to be transferred and posted to their own cadre---High Court restrained the Provincial Government from issuing order of posting of any non-cadre officer against cadre posting by transfer under S.10 of Sindh Civil Servants Act, 1973, nor Provincial Government would depute any officer from Occupational Group of Federal Government or from autonomous except in exigency unless such officer would meet the criteria of matching qualification, eligibility and experience to proposed post---Petition was allowed accordingly.

Lal Khan v. Employee Old Age Benefit Institution and others 2010 PLC (C.S.) 1377; Dr. Shafi-ur-Rehman Afridi v. C.D.A. Islamabad 2010 SCMR 378; Mazhar Ali v. Federation of Pakistan 1992 SCMR 435; Muhammad Karim v. Director Health Services 1987 SCMR 295 and Masood Ahmed v. Taj Muhammad Baloch 1999 SCMR 755 ref.

Noorul Haq Qureshi for Petitioners.

Allah Bachayo Soomro, Addl. A.-G., Iqbal Hussain Durrani, Secretary Services, Ali Ahmed Lund, DCO Tando Muhammad Khan, Muhammad Tayyab, Addl. Secretary, S&GAD, Abdul Jamil Hashmi, A.D. (Legal) on behalf of D.D. ACE, Hyderabad.

Muharram G. Baloch for Respondent No.4.

Muhamamd Ali Shaikh, D.A.G. for the State.

2012 P L C (C.S.) 1408

[Sindh High Court]

Before Sajjad Ali Shah and Aqeel Ahmed Abbasi, JJ

MAQSOOD AHMED MEMON

versus

HYDERABAD ELECTRIC SUPPLY COMPANY (WAPDA), HESCO and another

Constitutional Petition No.D-529 of 2007, decided on 19th May, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---WAPDA employee---Retirement on completion of 20 years service---Directions were issued to review the services of WAPDA employees who had completed 20 years service with objective to eliminate inefficient, corrupt and unwilling employees from the department---Notice was issued to the petitioner against whom, during 20 years service, about 18 minor and major penalties imposed were mentioned---Petitioner gave reply to said show-cause notice---Counsel for petitioner contended that show-cause notice was issued by an incompetent official and directions be given to the department to act in accordance with law---Authorities were supposed to consider the reply of petitioner and to act in accordance with law---No case for interference having been made out, Constitutional petition was dismissed.

Muhammad Saulat Rizvi for Petitioner.

Javed I. Bukhari for Respondents.

2012 P L C (C.S.) 1431

[Sindh High Court]

Before Faisal Arab and Syed Hasan Azhar Rizvi, JJ

Syed SAEED MIAN ZAIDI

versus

MINISTRY OF WATER AND POWER GOVERNMENT OF PAKISTAN through Secretary, Pak Secretariat Islamabad and 3 others

Constitutional Petition No.D-1126 of 2011, decided on 1st March, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Locus standi---Scope---To maintain the constitutional petition, it was not necessary for the petitioner to have a right in strict sense, but it was enough, if the petitioner would disclose the sufficient or personal interest for performance of some legal duty---Concept of locus standi had been whittled down and accordingly the term "sufficient interest" had to be given a generous interpretation.

Abid Iqbal Hafiz and others v. Secretary Public Prosecution Department, Government of Punjab PLD 2010 SC 841 and Majid and others v. Dr. Israr Ahmed and others 2010 PLC (C.S.) 760 ref.

S. Muhammad Saulat Rizvi for Petitioner.

Abdul Mujeeb Pirzada and Syed Khalid Shah for Respondent No.4.

Zahoor A. Baloch for Respondent No.2.

Syed Javed I. Bukhari for Respondent No.3 along with L.K. Jakhranai Manager (Legal), HESCO.

Muhammad Ali Shaikh, D.A.-G.

Respondent No.4 present in person.

Intervenor Tarique Majeed, Manager HRM present in person.

Imran Askari, Manager Admn. present in person.

Date of hearing: 16th February, 2012.

2012 P L C (C.S.) 1519

[Sindh High Court]

Before Shahid Anwar Bajwa and Aftab Ahmed Gorar, JJ

Syed MUJAID HUSSAIN SHAH

Versus

PROVINCE OF SINDH through Secretary Health Government of Sindh and 4 others

Constitutional Petition No.D-1133 of 2011, decided on 12th September, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Reinstatement in service---Petitioner was on probation with university and his service was terminated---Validity---On one hand university contended that petitioner was allegedly involved in offence of serious moral turpitude and on the other hand authorities stated that petitioner was on Probation and therefore, his employment had been terminated on the ground of unsatisfactory performance---No material was placed by university that performance of petitioner was assessed independently of any allegation which subsequently became subject matter of F.I.R. and thereafter university came to conclusion that petitioner's performance was not satisfactory and thereafter, decided to terminate his service---What prompted the termination during probation period was not performance of petitioner but certain allegations against him--Termination of petitioner was a case of colourable exercise of power--High Court in exercise of Constitutional jurisdiction set aside termination order of petitioner and was ordered to be reinstated in service---High Court directed that petitioner would be on probation and it was available to authorities to take disciplinary action against petitioner and if he would be proved guilty in accordance with rules, to take action in accordance with rules---Constitutional petition was disposed of accordingly.

Messrs Pakistan State Oil Co. Ltd., and others v. Muhammad Tahir Khan and others PLD 2001 SC 980 and Mrs. Abida Parveen Channar v. High Court of Sindh, 2011 PLC (C.S.) 836 ref.

Abdul Samad Memon for Petitioner. Afaq Saeed for Respondents.

Date of hearing: 23rd August, 2012.

2012 P L C (C.S.) 187

[Khyber Pakhtunkhwa Service Tribunal]

Before Sultan Mehmood Khattak and Noor Ali Khan, Members

Mst. SHAMSHAD BEGUM

Versus

CHIEF SECRETARY, KPK, PESHAWAR and 3 others

Appeal No.2016 of 2010, decided on 10th February, 2011. -

Khyber Pakhtunkhwa Civil Servants Act (XVII of 1973)---

----S. 10---Khyber Pakhtunkhwa Service Tribunals Act (I of 1974), S.4---Transfer---Appellant serving as Social Welfare Officer in BPS-17, was transferred from place 'P' to place 'A'---Appellant, on recommendation of DCO, was transferred to place 'C'---Appellant assailed the transfer order on the ground of being premature and based on mala fide---Validity---Appeal of civil servant was accepted holding that. impugned order was premature and passed on the basis of complaint which required a regular enquiry in the matter---Transfer of civil servant could not be made on the basis of complaint because transfer had not been mentioned as punishment in the penalty list in the Rules and Regulations regarding the conduct of civil servant---Appellant being a BPS-17 employee, competent Authority for transfer was Chief Secretary/Secretary of the department; that DCO was not competent to deal with the matter directly and to order enquiry--Impugned order was set aside with direction that appellant would remain posted at place 'A'.

Muhammad Asif Yousafzai for Appellant.

Tahir Iqbal, Government Pleader for Respondents.

2012 P L C (C.S.) 26

[Lahore High Court]

Before Umar Ata Bandial, J

ABID HUSSAIN and 5 others

Versus

SECRETARY TO GOVERNMENT OF THE PUNJAB, FINANCE DEPARTMENT, CIVIL SECRETARIAT, LAHORE AND 5 others

Writ Petition No.5502 of 2008, decided on 10th January, 2011.

Constitution of Pakistan---

----Arts. 199 & 25---Constitutional petition---Civil service---Upgradation---Entitlement---Three petitioners were serving as Goods Exit Tax Clerks in BS-5, another two were serving as Octroi Clerks in BS-5; and one was serving as Octroi Inspector in BS-9 in the octroi collection administration functioning under the West Pakistan Municipal Committees Octroi Rules, 1964---Collection of Octroi Tax and Export Tax by the Local Council was discontinued in 1999 as a result petitioners' service cadre called 'TMA' was abolished; and petitioners were transferred to different offices in the Local Government Institutions, where they were employed on ad hoc basis---Finance Department and Local Government Department issued notification upgrading the posts of junior clerk, senior clerk etc. from their existing pay scale to a higher level---Nomenclature of the posts occupied by the petitioners being not covered by said notification, they had been denied the benefit of said upgradation---Object of said notification was to benefit clerical staff in government service and was not meant to punish or exclude persons doing the same work, but had been given different nametag for purpose of administration or accounting convenience---Under Art.25 of the Constitution similarly placed persons, must be treated alike---Criterion of distinction, must be based on intelligible differentia having nexus with the object of the law---Criterion for differentiation adopted in the case, was merely the nomenclature of the petitioners' designation as Octroi Clerk or Goods Exit Tax Clerk---Criterion adopted by Finance Department for classification, was totally superficial and formal, lacking substantive relevance to satisfy the requirement of law---Petitioners, in circumstances, had clearly been discriminated in treatment by the authorities---High Court directed that authorities concerned would forthwith remove the cause of such discrimination by notifying the petitioners' cadre as eligible and qualified for equal treatment as the beneficiaries nominated in said notification, within one month.

I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041; Dr. Mobashir Hassan and others v. Federation of Pakistan and others (PLD 2010 SC 265 rel.

Kashif Ali Chaudhry, Mukhtar Abbas and Muhammad Boota, Advocates for petitioner.

Zaka-ur-Rehman Awan, Addl. A.-G.

Baby Tabassam, Litigation Officer, Local Government and Community Dev. Department.

Shah Faisal Aziz, Assistant Director (Legal) Local Government and Community Dev. Department Government of Punjab, on behalf of Respondent No.2.

Abdul Ghaffar Sindhu, Deputy Director, Fund Audit Punjab.

Sana Ullah Khan, Deputy Director Audit T.M.A. Jhang.

Muhammad Idrees, Senior Law Officer, Finance Department, Government of Punjab.

2012 P L C (C.S.) 31

[Lahore High Court]

Before Asad Munir, J

Ms. ANYESHA BASHIR WANI and others

Versus

GOVERNMENT OF PAKISTAN and others

Writ Petitions Nos.2577, 2875, 2576, 2816 and 2664 of 2009, decided on 7th January, 2010.

Constitution of Pakistan---

----Arts. 199, 212, 240 & 268---Constitutional petition---Civil service---Transfer of business concerning Income Tax, Sales Tax and Federal Excise from officers and staff of Income Tax Group and Customs and Excise Group to a newly created occupational service, called Inland Revenue Service---Maintainability---Petitioners/civil servants belonging to the Customs and Excise Group, were aggrieved by Office Memorandum, whereby all the business concerning Income Tax, Sales Tax and Federal Excise had been transferred from the Officers and Staff of said departments to a newly created occupational service, called Inland Revenue Service---Petitioners, had sought declaration that said Office Memorandum was unlawful and without lawful authority as it had adversely affected the terms and conditions of their service as to their appointment, seniority and promotion in violation of the fundamental rights; as well as under Arts. 240, 268 of the Constitution, Civil Servants Act, 1973 and relevant Rules--- Maintainability of constitutional petition was objected to by the authorities on the ground that jurisdiction of High Court was barred under Art.212 of the Constitution as the grievance of the petitioners related to the terms and conditions of their service---Petitioners were against the joining of the new service as they apprehended that their seniority in the new service would affect their prospects of promotion---Validity---Primary grievance of the petitioners had arisen out of the question of their seniority, which was no doubt, included in the terms and conditions of their service---Petitioners were aggrieved by the impugned Office Memorandum only because it adversely affected their terms and conditions of service in violation of Arts.240, 268 of the Constitution as well as Civil Services Act, 1973 and the Rules framed thereunder---Petitioners, in circumstances, could not invoke the constitutional jurisdiction of High Court as they could challenge the legality or vires of the impugned Memorandum before Federal Service Tribunal upon whom exclusive jurisdiction had been conferred under Art.212 of the Constitution to adjudicate upon a grievance in respect of the terms and conditions of service---Constitutional petition was dismissed.

Khalid Mehmood v. Collector of Customs, Lahore 1999 SCMR 1881; Iqan Ahmad Khurram v. Government of Pakistan and others PLD 1980 SC 153; I.A. Sharwani v Government of Pakistan 1991 SCMR 1041; Muhammad Ahmed v Pakistan 1990 PLC Service 185; Rana Muhammad Sarwar v. Government of Punjab 1990 SCMR 999; Government of West Pakistan v. Fida Muhammad Khan PLD 1960 SC 45; Government of West Pakistan v. Fateh Ullah Khan PLD 1960 SC 105; Muhammad Arshad Saeed v. Pakistan and others 1986 SCMR 1953 and Muhammad Aslam Khokhar and 24 of others v. Federation of Pakistan and others 2006 SCMR 1240 rel.

Syed Junaid Arshad v. Government of Pakistan 2006 PLC (C.S.) 131 and Fakhar-uz-Zaman Ali Cheema v. Government of Pakistan 2001 CLC 1277 distinguished.

Zafar Ullah Khan for Petitioners (in Writ Petition No.2577 of 2099).

Gohar Ali Khan for Petitioners (in Writ Petition No.2875 of 2009).

Syed Masroor Shah for Petitioners (in Writ Petitions Nos.2576, 2816 and 2664 of 2009).

Abdul Hafeez Pirzada, Saeed Ahmad Zaidi and Dr. G.S. Khan for Respondents.

Muhammad Aqil Usman, Member Legal F.B.R.

Date of hearing: 12th November, 2009.

2012 P L C (C.S.) 43

[Lahore High Court]

Before Abdus Sattar Asghar, J

RAB NAWAZ and 3 others

Versus

RAPE SEED BOTANIST, OIL SEED RESEARCH STATION, TEHSIL KHANPUR, DISTRICT RAHIM YAR KHAN and 3 others

Writ Petition No.2421 of 2011/BWP, decided on 26th September, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Withdrawal of appointment---Cancellation of withdrawal order---Entitlement to benefits and salaries of intervening period---Petitioners, in response to a press advertisement regarding recruitment of Baildars appeared before the Selection Committee and were awarded appointment letters and they submitted their joining reports---Later on, after about one month authorities, without serving any notice and providing opportunity of hearing to the petitioners, issued orders of withdrawal of petitioners' appointment---High Court, on constitutional petition against withdrawal of appointment, ordered reinstatement---Authorities allowed the petitioners to continue their services and the petitioners started to perform their duties---Authorities despite reinstatement, refused to disburse outstanding monthly salaries for the intervening period, from withdrawal of appointment and to their reinstatement---Validity---Authorities conceded the petitioners' grievance and was inclined to do the needful for disbursement of their salaries pertaining to intervening period---Authorities were directed to consider the intervening period (from withdrawal of petitioners' appointment letters and cancellation thereof), as their duty period and to pass appropriate orders in that regard for disbursement of salaries and other dues to the petitioners.

Masud ul Hassan Qureshi v. The Secretary to Government and Chief Administrator of Auqaf Punjab 1990 PLC (C.S.) 745 and Asghar Ali v. District and Sessions Judge, Bahawalnagar and another 2003 SCMR 726 rel.

Jam Mahjoob Ahmed Lar for Petitioner.

Mehr Muhammad Iqbal, A.A.-G.

Dr. Ghulam Sarwar, Research Officer/Respondent No.1 and Jamshed Anwar APPO in person.

2012 P L C (C.S.) 47

[Lahore High Court]

Before Ch. Muhammad Tariq and Rauf Ahmad Shaikh, JJ

SHAFIQUE RAZA

Versus

PARKS AND HORTICULTURE AUTHORITY (PHA), through Director General, Lahore and 13 others

I.C.As. Nos.262 and 258 of 2008 arising from Writ Petition No.3736 of 2008 and C.M.No.73 of 2009, heard on 24th November, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Promotion---Petitioners, who were employed as Junior Clerks in BPS-7 and were performing their duties since long, were legitimate expectants for the next promotion, but were deprived of the same, whereas respondents who were junior clerks in BPS-5 were given the promotion---Constitutional petition by the petitioners having been accepted by the Single Bench of High Court, respondents filed intra-court appeal---Appellants (respondents) had contended that constitutional petition in which impugned judgment was passed, was barred by Art.212(2) of the Constitution, as relief sought related to terms and conditions of service---Each petitioner had filed departmental representation to seek redress of his grievance to the effect that he was entitled to promotion; having done so, petitioners had a statutory remedy before Service Tribunal---Existence of alternative remedy had created a bar to filing of the constitutional petition---Double bar existed, in circumstances to entertain and adjudicate the constitutional petition under Art.212(2) of the Constitution---Intra-court appeals were allowed and impugned judgment passed by the Single Bench of High Court in constitutional petition was set aside.

2010 SCMR 676; 2010 SCMR 1484 and M.H. Mirza v. Federation of Pakistan 1994 SCMR 1024 ref.

2010 SCMR 676 and 2010 SCMR 1484 rel.

Dr. Abdul Basit and Nadeem Zaman Qureshi for Appellants.

Ch. Muhammad Khalid Farooq and Mian Manzoor Hussain for Respondents.

H.R. Haider for Applicant (in Civil Miscellaneous No.73 of 2009).

Hafiz Tariq Mahmood for Parks and Horticulture Authority.

Date of hearing: 24th November, 2010.

2012 P L C (C.S.) 65

[Lahore High Court]

Before Abdus Sattar Asghar, J

ABDUL SATTAR

Versus

DISTRICT ACCOUNTS OFFICER, BAHAWALPUR and 2 others

Writ Petition No.2356 of 2011/BWP, decided on 9th June, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Termination of current charge appointment---Entitlement to salary and allowance for intervening period---Petitioner was appointed as Principal of the college, BS-18, but subsequently he was posted on current charge appointment against newly created post in BS-19---Said current charge appointment in BS-19 was extended for further one year---Later on, current charge appointment of the petitioner was terminated and he was posted at his own pay and scale, and continued drawing salary and allowance of BS-19---District Accounts Officer ordered recovery of over-payment which the petitioner had received from extention of his service till termination thereof---Petitioner, even after expiry of one year, continued to work on the post till his current charge appointment was cancelled---Effect---Petitioner had strong case to draw the salary and allowance of BS-19 upto termination of his appointment from BS-19---Government in its letter, had directed that pay of the higher post would be admissible to the civil servant during the period of his appointment on higher post---Employee promoted to officiate in a higher post involving higher responsibility, was entitled to the pay of higher post---Petitioner was entitled to draw the salaries and allowance till date when his current charge appointment was cancelled by the authority.

Controlling Authority N.-W.F.P. Board of Technical Education, Peshawar and another v. Abdus Salam Secretary N.-W.F.P. Board of Technical, Education PLD 1993 SC 200 and Islamic Republic of Pakistan through Secretary Finance Division, Government of Pakistan, Islamabad v. Qazi Abdul Karim, Deputy Accountant-General, N.-W.F.P., Peshawar and another 978 SCMR 289 ref.

Jamshed Akhtar Khokhar for Petitioner.

Mehr Muhammad Iqbal, A.A.-G. with Muhammad Aslam Sarfraz, Senior Auditor, Accounts Officer, Bahawalpur for Respondents.

Date of hearing: 9th June, 2011.

2012 P L C (C.S.) 87

[Lahore High Court]

Before Muhammad Ameer Bhatti, J

AFZAL KHAN and others

Versus

CHIEF COMMISSIONER and others

Writ Petition No.21651 of 2010, decided on 24th May, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Upgradation of post---Petitioners who were appointed as Senior Auditors (BPS-16) approached the competent Authority for grant of upgradation to BPS-18, but Authority refused to grant upgradation---Validity---Some Auditors of the department, in another case, had invoked jurisdiction of High Court through constitutional petition for redressal of their same grievances and High Court accepted their petition, issued the directions for the upgradation as prayed for---Where a question of law and facts had been decided by Service Tribunal or by the apex court, same would cover not only the case of the civil servants who litigated, but also of other civil servants who could have not taken legal proceedings---Dictates and rule of good governance, in such case, demanded that the benefit of such judgment by Service Tribunal/ Supreme Court be extended to other civil servants, who were not parties to the litigation instead of compelling them to approach the Service Tribunal or any other forum---High Court had already allowed constitutional petition, and the petitioners in the present case had also sought the same relief, keeping in view the principle of consistency, constitutional petition was accepted.

Hameed Akhtar Niazi v. Secretary Establishment Division Government of Pakistan 1996 SCMR 1185; Dr. Zahoor Mehdi v. Chief Election Commissioner of Pakistan/Returning Officer for Presidential Elections PLD 2009 SC 1; Secretary Revenue v. Muhammad Saleem 2008 SCMR 948 and Abdul Hameed Anjum v. Federation of Pakistan and others PLD 2010 SC 857 rel.

Hafiz Tariq Naseem for Petitioners.

Gohar Nawaz Sindhu for Respondent No.1.

2012 P L C (C.S.) 96

[Lahore High Court]

Before Sh. Azmat Saeed, J

Rana AMAN ULLAH KHAN

Versus

MANAGING DIRECTOR PASSCO and 6 others

Writ Petitions Nos.14000, 21655 and 18550 of 2011, decided on 11th October, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Non-statutory rules---Effect---Petitioners were employees of a limited company, in which Government of Pakistan was a share-holder---Terms and conditions of service of petitioners were not governed by any statutory rules and no statutory rules existed which were applicable to petitioners in their employment with the company---Constitutional petition was not maintainable with regard to terms and conditions of service in absence of statutory rules---Petition was dismissed in circumstances.

Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nashr and others PLD 2011 SC 132; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M Tufail Hashimi 2010 SCMR 1484 and Pakistan International Airlines Corporation v. S. M. Ismail Naqvi and others 2010 SCMR 42 rel.

Khawar Ikram Bhatti for Petitioner.

Zahid Sikandar for Respondents (in W.P. No.21655 of 2011).

Muhammad Ishaq, D.G.M. Litigation PASSCO.

Malik Muhammad Jamil Awan for Respondents (in W.P. 14000 of 2011).

2012 P L C (C.S.) 101

[Lahore High Court]

Before Rauf Ahmad Sheikh, Syed Ejaz Hussain Shah and Syed Iftikhar Hussain Shah, JJ

Mst. UBAIDA MANZOOR

Versus

GOVERNMENT OF THE PUNJAB through Secretary Education (Schools), Lahore and 4 others

Writ Petition No.4694 of 2010, heard on 23rd June, 2011.

(a) Words and phrases---

----'Child', meaning of

(b)Interpretation of statutes---

---While interpreting statute or rules made there under those were to be read by giving the words used by the legislature or rules making authority its ordinary, plain, simple and grammatical meanings---Meaning which could render any portion of the enactment ineffective, had to be avoided---Unambiguous language used in the principal or subordinate legislation, should not be construed in a manner to defeat its object---Addition or subtraction in the words used by the law makers, was not desirable while interpreting any statute or rules made there under as the assignment of different meanings could defeat the object for which the law was enacted---No doubt, the court had the inherent power to interpret the statute, but such power was to be exercised to discover the intent of the legislature without importing or borrowing words by unnecessarily applying the principle of reading in and reading out.

Syed Mukhtar Hussain Shah v. Mst. Saba Imtiaz and others PLD 2011 SC 260; Qaiser Javed Malik v. Pervaiz Hameed and 2 others 2009 SCMR 846 and Muhammad Ijaz-ul-Haq v. Executive District Officer and others 2006 SCMR 989 rel.

(c) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R. 17-A---Constitution of Pakistan, Arts.199 & 25---Constitutional petition---Married daughter of deceased civil servant---Eligibility for appointment in civil service---Petitioner had assailed the vires of letter dated 14-3-2005, providing therein that the married daughter of the deceased government servant, was not eligible for benefit of S.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 as married daughter became the liability of her husband after her marriage---Under R.17-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, benefit of appointment was to be extended to a child of a civil servant, who died during service or was rendered invalidated/incapacitated during service---No distinction was made in the said Rule between a son and a daughter married or unmarried child---Clear and unambiguous object of that provision was to give relief to the bereaved family, who had been deprived of the bread earner---Distinction on the basis of sex was violative of the fundamental right of equality of citizens as bestowed under Art.25 of the Constitution---Narrow interpretation depriving a married daughter of such civil servant of the benefit given under S.17-A of the Ordinance, did not appeal to the rational mind; as there could be an eventuality when the deceased would leave behind one married daughter and remaining minor children---If the daughter was not given the benefit, then the family could not get any relief which would be against the spirit of that benevolent provision of law which appeared to have been made for the welfare of the bereaved families of the civil servants---High Court declared that benefit of S.17-A of the Ordinance would be admissible to one unemployed child of a civil servant, who died or was rendered invalidated/incapacitated during service, irrespective of his/her marital status or sex.

Nazia Naeem v. Executive District Officer (Education), Bahawalpur and another KLR 2009 L&S. Cases 153 and Miss Iffat Tahirah v. Secretary Schools and others 2010 PLC (C.S.) 1404 rel.

Qamar-uz-Zatnan Butt and Haji Tariq Aziz Khokhar for Petitioner.

Aurangzeb, Asstt. A.-G., Punjab for Respondents Nos.1 to 4. Abdus Salam Alvi for Respondent No.5.

Date of hearing: 23rd June, 2011.

2012 P L C (C.S.) 112

[Lahore High Court]

Before Rauf Ahmad Sheikh and Syed Iftikhar Hussain Shah, JJ

CHIEF COMMISSIONER INLAND REVENUE, MULTAN

Versus

MUHAMMAD BILAL and 7 others

I.C.A. No.143 of 2010 in Writ Petition No.85 of 2010, heard on 6th July, 2011.

(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 8-B---Constitution of Pakistan, Arts. 25, 189, 190 199 & 212(2)---Civil Procedure Code (V of 1908), O.XXIII, R.3---Qanun-e-

Shahadat (10 of 1984), Art.129(e)---Law Reforms Ordinance (XII of 1972), S.3---Intro-court appeal---Promotion of petitioners as Inspectors (BPS-14) of Income Tax Department on acting charge/officiating basis after having qualified Departmental Promotion Examination=--Non­payment of salary in BPS-14 to petitioners though working as officiating Inspectors---Order of High Court accepting petitioner's constitutional petition with consent of counsel for both parties directing the Federal Board of Revenue to pay them salary in BPS-14 and promote them in terms of judgment of Supreme Court (Civil Petitions Nos.506 to 508-L of 2008) against vacancy, if occurred---Board's pleas were that High Court in view of Art.212(2) of the Constitution hud-no jurisdiction to pass impugned order; that promotion of petitioners on acting charge basis was against quota reserved for direct recruitment, and they could not be promoted due to non-availability of seats and that Board had given. consent in respect of payment of salary in BPS-14, but had not given consent regarding promotion in light of judgment of Supreme Court---Validity---Finance Division in its letter also adopted by the Board had clarified that an officer fully qualified and appointed by competent authority on higher post would be entitled to pay of higher post from date of assumption of its charge---Grievance of petitioners was against discriminatory treatment given to them and questions involved in such petition pertained to their entitlement to salary of higher posts held by them under orders of competent authority---Even in absence of consent of parties, every court including High Court/Tribunal/Authority was bound to follow judgment of Supreme Court---All executive authorities were bound to act in aid of Supreme Court---Presumption of correctness would be attached to duly recorded proceedings of court---Government servant, even though not party to proceedings before Supreme Court, would be entitled to benefit of its judgment, if he and persons in whose favour same was passed, were placed exactly in same conditions---Parties by consenting to settlement of controversy had impliedly given up right of appeal---Board could not legally or morally back out and deny consenting statement given in High Court and avoid implementation of impugned order on lame excuses---Inter-court appeal was dismissed in circumstances.

Commission Income Tax and others v. Khadim Hussain and others Civil Petitions Nos.506-L to 508-L of 2008 and 1998 PLC (C.S.) 1362 rel.

(b) Civil Procedure Code (V of 1908)---

----Ss. 96(3), 115 & O. XXIII, R. 3---Appeal---Scope---Decree/order passed due to compromise between parties to proceedings---Validity--Such decree/order would become conclusive and could not be challenged in revision or appeal by such parties---Principles.

By consenting to the settlement of the controversy, the parties to the proceedings impliedly give up the right of appeal. All decrees or orders passed due to compromise become conclusive and cannot be assailed by the parties to the compromise through an appeal or revision. If the court is satisfied that the compromise/agreement or the settlement is lawful, then it would pass the decree accordingly as provided under Order XXIII, Rule 3, C.P.C. Such decrees or orders cannot be called in question through an appeal. Section 96(3), C.P.C., clearly provides that no appeal shall lie from a decree passed by the court with consent of the parties. The intention of legislature in enacting this provision clearly appears to be the promotion .. of good conscience amongst the litigant public and to prompt them to abide by the mutual settlement and lawful compromises.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 129(e)-Duly recorded proceedings of court---Validity---Presumption of correctness would be attached to such proceedings.

(d) Constitution of Pakistan---

----Art. 189---Benefit of judgment of Supreme Court---Entitlement---Scope---Government servant, even though not party to proceedings before Supreme Court, would be entitled to benefit of such judgment, if he and persons in whose favour same was passed were placed exactly in same conditions.

Agha Muhammad Akmal and Tariq Manzoor Sial for Appellant. .

Ch Abdul Sattar Goraya for Respondents Nos.1 to 4.

Date of hearing: 6th July, 2011.

2012 P L C (C.S.) 130

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD FAISAL KHAN and 48 others

Versus

SECRETARY (HEALTH), GOVERNMENT OF PUNJAB, LAHORE and another

Writ Petitions Nos.13073, 12499, 12545, 12500, 12460, 12496, 12498, 12494, 12192, 12493, 12497, 12495, 13334 and 12463 of 2010, heard on 14th Dece,mber, 2010.

Constitution of Pakistan---

----Arts. 199, 2A, 4 & 25---Constitutional petition---Civil service--Regularization of service---Petitioners, who were daily wage employees of clause-IV, were performing their duties for more than 2 years and the authorities were extending their contract of service from time to time after every 89 days---Employees were directed by the authorities to work at contingent, basis; there was no complaint against them and they were performing their duties according to the entire satisfaction of the authorities---Authorities advertised different posts for recruitment for class-IV and petitioners were directed to apply afresh for their respective posts---Petitioners claimed that they were entitled for regularization of their services as they were working on their respective posts for the last two years without any break---Plea of petitioners (hospital employees) was that their services were the dire need of the authorities and was of the special nature providing medical facility to the Cardiac patients---Validity---Authorities had regularized the service of number of contract employees, but the petitioners had been.denied of their legitimate right of becoming permanent employees---Such action of authorities was violative of their guaranteed rights under Arts.2A, 4 & 25 of the Constitution and was discriminatory---Authorities were bound to treat the petitioners equally and without any reservation---Authorities were trying to recruit fresh employees in place of the petitioners with the consultation of legislators against the law and fundamental rights of the petitioners---High Court, in circumstances, directed the authorities to regularize the petitioners in service with effect from their initial appointment---Petitioners would not be entitled for payment of difference of any arrears in their salary for the date of their initial appointment till the issuance of letter of appointment under the agreement.

Ikram Bari and others v. National Bank of Pakistan through President. and others 2005 PLC (C.S) 915; Pakistan Telecommunication Company Limited through General Manager and others v. Muhammad Zahid and 29 others 2010 SCMR 253; Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Government of Pakistan through Establishment Division, Islamabad and 7 others PLD 2003 SC 110 and Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 rel.

Fakhar Raza Malana and Rana Muhammad Nazir Khan Saeed for Petitioners.

A.A.-G. and Dr. Fazal-ur-Rehman for Respondents.

Date of hearing: 14th December, 2010.

2012 P L C (C.S.) 179

[Lahore High Court]

Before Sh. Ahmad Farooq, J

Miss NAHEED ATTA

Versus

GOVERNMENT OF THE PUNJAB through Additional Chief Secretary, (Chairman Provincial Selection Board-II), Civil Secretariat, Lahore and 2 others

Writ Petition No.24755 of 2010, heard on 24th May, 2011.

(a) Punjab Civil Servants Act (VIII of 1974)---

----Ss. 8 & 21---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Promotion---Imposition of condition---Petitioner who joined Education Department as lecturer (BS-17) was promoted as Assistant Professor (BS-18), subsequently when promotion Policy from post of Assistant Professor to Associate Professor was issued, petitioner who fulfilled the criteria for said promotion was cleared for promotion---Petitioner was promoted, with condition that she should provide a certificate of successful completion of Ph.D.---Petitioner challenged the imposition of condition and authorities had objected the maintainability of constitutional petition, contending that since an alternate remedy of filing a representation/appeal/review was available to the petitioner, she could not legally invoke the constitutional jurisdiction of High Court---Validity---Proviso to S.21 of the Punjab Civil Servants Act, 1974 had provided that no representation would lie in matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post---Where petitioner's fitness or suitability was considered for promotion, he could not go to the Service Tribunal---Question of eligibility, which was a term of service was not excluded from the purview of jurisdiction of Service Tribunal, but the question whether a person who had requisite eligibility was rightly selected or not on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade had been excluded---High Court, in circumstances; had jurisdiction to adjudicate upon the matter.

Tahir Mahmood v. Inspector-General of Police, Punjab, Lahore, and another 1993 PLC (C.S.) 576 and Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCMR 682 rel.

(b) Punjab Civil Servants Act (VIII of 1974)---

----S. 8---Promotion---Employee who joined Education Department as Lecturer (B.S.-17), was promoted as Assistant Professor (B.S.-18); subsequently when promotion Policy from Assistant Professor to Associate Professor was issued, petitioner who fulfilled the criteria. for said promotion, was promoted, but a condition was imposed by authorities that she should provide a certificate of successful completion of Ph.D.---Validity---Such condition was not attached to any other candidate competing with the civil servant and even teachers junior to her in service, who were not Ph. Ds were also promoted---Imposition of the condition on the promotion of petitioner was discriminatory in nature and same could not be sustained--Recommendation of Provincial Selection Board to the extent of imposing a condition of successful completion of Ph.D. for promotion of to the post of Associate Professor, was declared to be discriminatory, illegal and was set aside in circumstances.

Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCMR 682 and Tahir Mahmood v. Inspector-General of Police Punjab, Lahore, and another 1993 PLC (C.S.) 576 rel.

Shaharyar Sheikh for Petitioner.

Jawad Hassan, Addl. A.-G. along with Ijaz Ahmad Section Officer (legal), S&GAD for Respondents.

Date of hearing: 24th May, 2011.

2012 P L C (C.S.) 284

[Lahore High Court]

Before Ch. Muhammad Tariq, J

SHAHZAD TARIQ

Versus

SECRETARY SCHOOLS (EDUCATION DEPARTMENT) GOVERNMENT OF PNJAB and 9 others

Writ Petition No.18055 of 2011, decided on 8th August, 2011.

Constitution of Pakistan--

----Art. 199---Constitutional petition---Maintainability---Civil Service---Transfer---Petitioner who was performing his duties as Junior Clerk at place 'G' having been transferred to place 'K' had challenged his transfer---Validity---Petitioner had no legal right to be posted against a particular post and question of infringement of fundamental right would not arise---Posting/transfer related to terms and conditions of government servant and it was the Service Tribunal who had exclusive jurisdiction to dilate upon and decide such matters while constitutional jurisdiction, could not be invoked to get such controversies resolved---Plea of mala fide also did not confer jurisdiction upon High Court to entertain the constitutional petition to resolve the controversy of posting and transfer, as there was an express bar contained in Art.212 of the Constitution, which had provided that Service Tribunal had exclusive jurisdiction to interfere in such like matters.

Zahid Sultan Khan Minhas for Petitioner.

2012 P L C (C.S.) 286

[Lahore High Court]

Before Abdus Sattar Asghar, J

Dr. LAL HUSSAIN AKHTAR and others

Versus

CHIEF SECRETARY PUNJAB and others

Writ Petition No.2337 of 20.11/BWP, Criminal Originals Nos.305 and 405 of 2011, Writ Petitions -Nos.3599, 3600, 4731 and 5528 of 2011/BWP, decided on 30th November, 2011.

Constitution of Pakistan---

----Arts. 199, 212 & 25---Constitutional petition---Civil service---Contract employee---Regularization of service---Petitioners, in their constitutional petition had called in question, the regularization of the contract employees on the apprehension that impugned regularization could hinder in their legitimate expectation of promotion---Petitioners belonged to the category of regular employees having different classifications as compared to the category of the contract employees recruited on the basis of quota of initial recruitment---Petitioners had no cause of discrimination as prohibited under Art.25 of the Constitution and had failed to make out any valid grievance on account of regularization of contract employees made in accordance with the Policy of the Government---Government had the prerogative to formulate policy of recruitment in accordance with law and Constitution---No legal or vested right of the petitioners was likely to be infringed due to regularization of the contract employees, they had no ground to invoke the constitutional jurisdiction of High Court---Petitioners, being civil servants, if apprehended any threat to terms and conditions of their services, were barred under Art.212 of the Constitution to approach the High Court under its constitutional jurisdiction.

Raja Muhammad Sohail Iftikhar and Muhammad Atif Qureshi for Petitioners.

Mahar Muhammad Igbal, Asstt. A.-G. and Abdul Ghaffar Khan Chughtai, Muhammad Irfan, Law Officer and Dr. Muhammad Intizarul Haq, Plant Pathologist for Respondents.

Date of hearing: 30th November, 2011.

2012 P L C (C.S.) 290

[Lahore High Court]

Before Nasir Saeed Sheikh, J

Dr. HASSAN AMIR SHAH

Versus

PROVINCE OF PUNJAB through Chief Secretary and 5 others

Writ Petitions Nos.7756, 8681, 6963, 7213 and 9121' of 2011, decided on 24th June, 2011.

University of Education Lahore Ordinance (L of 2002)---

----Preamble---Lahore College for Women University Lahore Ordinance (XLIX of 2002), Preamble---Fatima Jinnah Women University, Rawalpindi Ordinance (XLIII of 1999), Preamble---Bahauddin Zakriya University Act (III of 1975), Preamble---Government College University, Lahore Ordinance (XLVIII of. 2002), Preamble---Constitution of Pakistan, Art.25 & 199---Constitutional petition---Equality before law---Reasonable classification---Scope---Appointment of Vice-Chancellors in the Universities---Government, through a public notice, published in three leading daily newspapers of Pakistan, had invited applications to fill the posts of Vice-Chancellors---Search Committee consisting of eminent scholars was constituted by the Provincial Governor (Chancellor of the Universities) for making recommendations about the selection of candidates on the basis of academic record as well as of the administrative experience of the respective candidates through a credible mechanism on the basis of an evaluation criteria determined for the purpose by the members of the Search Committee---Such process had been commenced by the members of the Search Committee for selection of the candidates through necessary advertisements in three daily well known newspapers of the country giving in detail the eligibility criteria of the . selection---Selection of candidates for the appointment in question had been given a transparent mechanism---Allocation of five additional marks to the credit of the qualifications of those who had obtained their Ph.D degree from well known top ranking 500 Universities of the world could not be an act of discrimination as against universities of Pakistan---Where there was a reasonable classification made in a particular matter, such step was itself considered as sufficient in negating the allegations of discrimination---Contention of the petitioners that the said evaluation criteria, as determined by the Committee, was discriminatory was not sustainable in the eye of law and had no legal force---No written test was conducted and the administrative skills and the educational potentials of the candidates short-listed was further to be assessed by the Search Committee finally through an interview to be conducted and no law was 'violated in adapting such procedure---Contention of the petitioners that 40 marks were arbitrarily allocated to the interview, in circumstances, was repelled---Process of selection initiated and conducted was final for filling the vacancies and did not suffer from any illegality; was on the face of it transparent and having been supervised by Search Committee working under the guidelines provided by Higher Education Commission--Constitutional petitions were dismissed in circumstances.

Nadeem Khan v. Board of Intermediate and Secondary Education Peshawar and another PLD 1993 SC 397; Ghulam Mustafa Insari and 48 others v. Government of the Punjab and others 2004 SCMR 1903; Allah, Yar v. General Manager, Railways Headquarters Lahore and another 2001 SCMR 256; Dr. Tariq Nawaz and another v. Government of Pakistan through the Secretary, Ministry of Health, Government of Pakistan, Islamabad and another 2000 SCMR 1956; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; Abdul Baqi and others v. Muhammad Akram and Others PLD 2003 SC 163 and Shaikh Zayed Hospital and Post Graudate Medical Institutes through Chairman and Dean and another v. Dr. Muhammad Saeed and another 2010 PLC (C.S.) 967 ref.

Anwar Kamal and Khawaja Umar Masood for Petitioner.

Nasir Ahmad Awan for Petitioner (in Writ Petitions Nos.7213 and 8681 of 2011).

Ijaz Ahmad Chadhar for Petitioner (in Writ Petition No.6963 of 2011).

Muhammad Hanif Khatana, Addl. A.-G. and Malik Abdul Aziz Awan, A.A.-G. for Respondents.

Ms. Shama Zia, Additional Secretary Higher Education Department and Ghulam Sarwar Noor, Deputy Secretary, Higher Education Department for Respondents.

2012 P L C (C.S.) 319

[Lahore High Court]

Before Sh. Najam-ul-Hassan and Muhammad Yawar Ali, JJ

MARKET COMMITTEE, SAHIWAL

Versus

Syed ZAIGHAM ALI and others

I.C.A.No.139 of 2011 in Writ Petition No.2249 of 2011, heard on 20th September, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Delay in filing constitutional petition---Laches---Petitioner filed petition, after a delay of ten years---No plausible explanation for such delay had been filed by the petitioner---Constitutional jurisdiction was discretionary in nature and he who sought equity, must approach the court with clean hands and remain vigilant in asserting for his rights---Constitutional petition filed by the petitioner was liable to be dismissed being suffering from lathes.

Mst. Barkat Bibi v. Mst. Salma Bibi and 2 others 2005 CLC 1401; Mazhar-ul-Haq alias Mazhar Abbas v. Ghulam Muhammad and 2 others 2005 CLC 1169 and Khiali Khan v. Haji Nazir and 4 others PLD 1997 SC 304 rel.

(b) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R. I7-A---Law Reforms Ordinance (XII of 1972), S.3---Intra-court appeal---Appointment of unemployed child of invalidated/incapacitated civil servant---Son of civil servant, had prayed that a direction be issued to the employer Committee to employ him in place of his father, who had allegedly been incapacitated---No certificate issued by Medical Officer stating in clear and unequivocal terms that father of petitioner had become incapacitated---Under provisions of S.1 7-A of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 an unemployed child would become eligible to be appointed in the place of his father only in case his father died while in service or was declared invalidated/incapacitated for further service---Father of petitioner was never declared to lIe incapacitated person, either by Medical Officer or by the head of the department---Department having not acted in breach of any law or regulation by not appointing the son of the employee in place of his father, intra-court appeal was accepted in circumstances.

Muhammad Ramzan Khalid Joyia for Appellant. Muhammad Igbal Khan for Respondent No.1.

Malik Muhammad Bashir Lakhesir, A.A.-G. for Respondents Nos.2 to 4.

Date of hearing: 20th September, 2011.

2012 P L C (C.S.) 323

[Lahore High Court]

Before Ch. Muhammad Younis, J

Dr. MUHAMMAD SHAHID

Versus

GOVERNMENT OF PUNJAB through Secretary (Health), Punjab, Lahore and 5 others

Writ Petition No.9084 of 2011, decided on 18th July, 2011.

Punjab Civil Servants Act (VIII of 1974)--- '

--S.. 9---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Transfer---Petitioner had challenged his transfer from one place of working to another---Transfer related to the terms and conditions of service and civil servant could claim to be posted at a particular place; he could be transferred at any place and under Art.199 of the Constitution, High Court had no jurisdiction to entertain matters relating to transfer---High Court had no jurisdiction to interfere into the matter of transfer in view of the bar contained under Art.212 of the Constitution---Constitutional petition was dismissed.

2008 PLC (C.S.) 44 ref.

2011 SCMR 592; Rai Ahmad Ali v. Province of Punjab and others J999 SCMR 1832 and Jafar Ali Shah v. Province of Punjab and others 2011 PLC (C.S.) 324 rel.

Tahir Mehmood for Petitioner.

M. Javaid Saeed Pirzada, A.A.-G on court's call

2012 P L C (C.S.) 366

[Lahore High Court]

Before Syed Mansoor Ali Shah and Muhammad Khalid Mahmood Khan, JJ

SHABANA AKHTAR

Versus

DISTRICT COORDINATION OFFICER, BHAKKAR and 2 others

Intra-Court Appeal No.543 of 2011 in Writ Petition No.16227 of 2011, heard on 18th October, 2011.

(a) Discretion---

----Fettering of discretion---Effect---Discretion must be exercised with full application of mind to facts of the case---Even though policy is framed to facilitate discretion, leading to an efficient administrative system, pillared on consistency and certainty, it is never so absolute as to disable exercise of discretion to facts of every case because some cases might have unusual facts that might not be created to or covered under the policy but meet all legal requirements under law---Wherever discretion is subjected to a perfunctory application of a Policy without independent application of mind to facts of each case, discretion is said to be fettered and hence bad in law.

De Smith's Judicial Review 6th Edition p.479; (1970) 3 All ER 165 (Ref: Law of Writs by V.G. Ramachendran p.699 Vol.I) and Government of West Pakistan and another v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 rel.

(b) Constitution of Pakistan---

----Art. 4---Right of individuals to be dealt with in accordance with law---Discretion---Scope---Abuse of discretion by public functionary violates Art. 4 of the Constitution, as it impairs due process and right of a person to be treated in accordance with law.

(c) General Clauses Act (X of 1897)---

----S. 24-A---Discretion---Reasonableness---Scope---Reasonableness of an administrative discretion or administrative policy carefully evaluates factors that have been considered by the executive in arriving at decision or in formulating policy---Reasonability of an administrative discretion or a policy must, therefore, inter alia, hinge on (a) it must advance purpose of law (b) it must be in general public interest (c) must be based on relevant and key considerations arising out of the facts of the case (d) must not be tainted with collateral purpose, colourable exercise of power or improper object and (e) must not be based on mala fide or malicious intent---Court should also thoroughly evaluate range of reasonable decisions taken by decision maker to see whether anyone of such decisions pass the test of reasonableness.

(1948) 1 KB 229; Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (Ref. V.G. Ramachendran's Law of Writs - at p.818); (1947) 2 All ER 680; V.G. Ramachandran's Law of Writs sixth edition revised by Justice C.K. Thakker - p.818; Wade: Administrative Law, (9th Edn.) pp.362-76 (Ref: at p.832 V.G. Ramachandran); Secretary of State for Education and Science v. Tameside Mtropolitan Borough Council [1977] AC 1014, 1064 E (Ref: The Rule of Law by Tom Bingham p.64); Boddington v. British Transport Police [1999] 2 AC 143, 175 H.; The Judge in a Democracy, Princeton University Press, p.249; Judicial Review of Public Actions, Justice (R) Fazal Karim, Vol. 2, Pakistan Law House; PLD 1987 SC 504; 1997 SCMR 641, 802 and PLD 1993 SC 210 rel.

(d) Law Reforms Ordinance (XII of 1972)---

----S. 3---Civil service---Recruitment---Contract policy---Merit list and waiting list---Object, purpose and scope---Grievance of appellant was that selected candidate did not join post in question and she was next on merit list, therefore, she should have been appointed---Authorities declined to appoint appellant against post in question on the plea that under Contract Appointment Policy-2004, merit list was valid for a period of only 190 days---Validity---Advantages of merit list-cum-waiting list were that vacancy could be filled immediately without re-coursing to a full-fledged recruitment process starting with fresh public advertisement---Waiting list mechanism could save public money, human resource and time spent on carrying out a full course recruitment process---If one or two vacancies occurred, those could be immediately filled without waiting for a fresh recruitment process to be initiated and without keeping several posts vacant for a considerable period of time---Vacancy could arise at any time, the contingency plan in the shape of operational waiting list must also be available as long as the post continued---No timeframe or cut-off date for expiry of waiting list---Not binding on candidates to remain on waiting list and were free to search for other and better employment prospects but till they did so, their names should continue to be retained on waiting list---As and when vacancy would arise, such candidates could be contacted and if they were available, the vacancy could be duly filled---Only time waiting list might lose its utility and efficacy was when eligibility criteria to the post in question was altered or if post itself was abolished or restructured or reorganized---Division Bench of High Court directed the authorities to consider appellant for post in question on the basis of merit list in question and order passed by Single Judge of High Court was set aside---Intra court appeal was allowed accordingly.

Muhammad Javid-ur-Rehman Rana for Appellant.

Ilyas Kaleem, Asstt. A.-G., Punjab for Respondents.

Date of hearing: 18th October, 2011.

2012 P L C (C.S.) 379

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Mrs. SHAHIDA SHAHAB

Versus

PROVINCE OF PUNJAB through Secretary Services and General Administration

Department and another

Writ Petition No.24775 of 2011, decided on 20th January, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Allotment of official accommodation--- Cancellation of allotment--- Official accommodation was allotted to civil servant and petitioner being wife of the allottee, and herself a civil servant, was allowed to reside in the official accommodation with her husband by the competent Authority---Official accommodation in question was allotted to the petitioner on her application when the allottee (her husband) was transferred---Petitioner was informed that Chief Minister had withdrawn her joint allotment being contrary to allotment policy---Allotment order in favour of the petitioner had shown that earlier joint allotment order or permission to reside with her husband as joint allottee, stood merged in the allotment letter in favour of petitioner---Petitioner, in circumstances had become the sole/single allottee of the accommodation in question---Impugned letter had shown that authorities had cancelled petitioner's joint allotment, which in fact was not the joint allotment, but was an allotment independently made to the petitioner---Petitioner being resident in the accommodation in question as allottee of the same under the orders of competent Authority, order whereby allotment of the petitioner was cancelled was against the facts and was without any lawful authority---Constitutional petition was dismissed.

Sharjeel Adnan Sheikh for Petitioner.

Muhammad Hanif Khatana, Addl. A.-G. Punjab for Respondents

2012 P L C (C.S.) 392

[Lahore High Court]

Before Umar Ata Bandial, J

MUHAMMAD ISHAQ and others

Versus

P.P.O. and others

Writ Petition No.415 of 2010, decided on 17th February, 2011.

Police Order (22 of 2002)---

----Arts. 10(2) & 10(3)---Police Rules, 1934, Rr.13.5, 13.6 & 13.7---Constitution of Pakistan, Art.199--- Constitutional petition---Promotion---Petitioners challenged Standing Order issued under Police Order, 2002 imposing a requirement of 60% marks in entry test for the B-1 course---Contention of petitioner was that said Order was illegal for modifying the applicable provisions of the Police Rules, 1934---Validity---Rules 13.5, 13.6 & 13.7 of the Police Rules, 1934 visualized basic level of literacy for candidates for promotion into list of B-1 course and no additional requirement was mentioned---Basic level of literacy could have sufficed in the year 1934 entailing a capability to read and write simple sentences, however that standard could not be said to remain stagnant over the time and new elements of capability and knowledge may be introduced to test simple levels of literacy and understanding in the present days---Entry test in question was a multiple choice test, which was simple and evaluated the aptitude as well as understanding of facts and subjects of knowledge which had been applied successfully for the last ten years without objection---Consistent department practice itself constituted a fair ground to continue said practice, and the reason being the certainty it brought to the administrative policies---Specification of 60% pass marks was of no relevance in the matter however, knowledge that was expected of a candidate was relevant---Objection taken by the petitioner consequently was merely of a formal nature---As long as level of test confined to basic knowledge, the passing marks fixed for eligibility to B-1 course did not infringe the Police Rules, 1934 that were silent on the subject---Impugned Standing Order did not violate the rights of the petitioners---Constitutional petition was dismissed, in circumstances.

Bilal Bashir for Petitioners.

Zaka-ur-Rehman Awan, Addl. A.-G. along with Muhammad Ashraf, D.S.P. (Legal), SPO Office, Jhang.

2012 P L C (C.S.) 483

[Lahore High Court]

Before Rauf Ahmad Shaikh and Syed Iftikhar Hussain Shah, JJ

FIDA HUSSAIN

Versus

CHAIRMAN BOARD OF INTERMEDIATE AND SECONDARY EDUCTION, MULTAN and another

Review Application No.2 of 2007 in Writ Petition No.551 of 2006, heard on 25th October, 2011.

(a) Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4, 5 & 6---Constitution of Pakistan, Art.199---Civil Procedure Code (V of 1908), S.114 & O.XLVII, Rr.1 & 2---Review of High Court judgment---Dismissal from service---Leakage of examination papers---Applicant served as a senior clerk in the Board of Intermediate and Secondary Education (Board), for last 14 years---Question paper of Chemistry-II of Intermediate examination for the year 1998 was leaked because of which said paper could not be conducted and same was replaced and regular inquiry was initiated---Applicant and his three other colleagues were served with charge sheet and during inquiry a report was prepared in which the applicant was found guilty---Upon submission of inquiry report, authorized officers served the applicant with a show-cause notice for major penalty of dismissal from service---Applicant submitted his reply to the show-cause notice and alleged that no incriminating evidence was available against him and the report of the inquiry officer was based on surmises and conjectures and also requested that the matter be probed through proper handwriting expert---Authorized officer imposed major penalty of dismissal from service, whereafter, committee of three members constituted by the Board, through its order, recommended dismissal from service of applicant and three other persons---Applicant preferred departmental appeal against his dismissal before Provincial Secretary Education Department (Higher Education), which vide its order also rejected applicant's appeal---Applicant assailed both the orders through constitutional petition, which was also dismissed---High Court in constitutional petition had thoroughly examined the record, appreciated the contentions raised by applicant and minutely examined the inquiry report and also considered the case- law produced by the counsel for the applicant and thereafter dismissed the constitutional petition---High Court while considering the constitutional petition had observed that during inquiry, the inquiry officer had observed all the formalities required under Rr.4, 5 & 6 of Government Servants (Efficiency and Discipline) Rules, 1973, had framed charge, obtained reply, recorded the evidence in support of the allegation, allowed the applicant to cross-examine the witnesses and to produce the evidence in rebuttal in his defence---Applicant had not brought on record any fresh material entitling him for review of the impugned judgment and there was no point of law which escaped notice of High Court while deciding the constitutional petition---Applicant having failed to point out any cogent reason and legal justification for the review of the impugned judgment, his review application was dismissed.

PLD 2006 SC 175; 2001 SCMR 256; PLD 1998 SC 363; PLD 2006 SC 175; 2008 SCMR 763; 2008 SCMR 723; 1991 SCMR 2330; PLD 1973 SC 110; PLD 1989 SC 335; 2006 PLC (C.S.) 110; 2000 PLC (C.S.) 678; Jan Muhammad v. General Manager Karachi 1993 SCMR 1440 and Federation of Pakistan v. Noor Jamal 2004 SCMR 294 ref.

(b) Punjab Board of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 20 & 21---Constitution of Pakistan, Art.199---Dismissal from service---Constitutional jurisdiction of High Court---Scope---Applicant was an employee of the Board of Intermediate and Secondary Education and was dismissed as a result of disciplinary proceedings against him and departmental appeal filed by applicant was also dismissed---Rules and Regulations framed by the Board of Intermediate and Secondary Education, governing the terms and conditions of its employees, under Ss.20 & 21 of the Punjab Board of Intermediate and Secondary Education Act, 1976 were not statutory rules, therefore the orders of dismissal of the applicant could not be interfered by invoking the constitutional jurisdiction of the High Court.

2000 PLC (C.S.) 678 rel.

(c) Civil Procedure Code (V of 1908)---

----S. 114 & O. XLVII, Rr.1 & 2---Review application---Scope---Powers of review are quite limited which are exercised quite sparingly and only in exceptional cases in which some important aspect of the matter escaped notice of the court or was not considered and as such error was apparent on the judgment under review.

Abdul Rasheed Sheikh for Appellant.

Sh. Shahid Waheed, Legal Adviser for Respondent No.1.

Date of hearing: 25th October, 2011.

2012 P L C (C.S.) 563

[Lahore High Court]

Before Umar Ata Bandial, J

Ch. SIKANDAR ALI

Versus

CHIEF SECURITY OFFICER and others

Writ Petition No.21100 of 2010, decided on 12th September, 2011.

Civil Servants Act (LXXI of 1973) ---

----S. 13---Pakistan Army Act Rules, 1954, R.12 (1)(a)---Constitution of Pakistan, Art.199--- Constitutional petition--- Compulsory retirement---Scope---Petitioner was employed in Airport Security Force and was retired after completing 25 years of service---Grievance of petitioner was that word "compulsory" mentioned in his retirement letter implied stigma which was reflected by major punishment, whereas he was simply retired---Validity---Compulsory retirement of petitioner by letter in question was not meant to impose punishment on him---Service of petitioner had been dispensed with along with all pensionary benefits as neither R.12(1) of Pakistan Army Act Rules, 1954, nor S.13 of Civil Servants Act, 1973, contemplated "compulsory retirement" as mode of retiring an officer from service, however such expression was used in the order in question---Use of word "compulsory" carried an adverse connotation, which could not be incorporated in terms of applicable legal provisions of R.12 of Pakistan Army Act Rules, 1954, nor could be justified in view of the fact that no notice of hearing of petitioner nor any inquiry into allegations mentioned in parawise comments had been held---Order of retirement of petitioner was illegal and without jurisdiction to the extent of imposing a major punishment on petitioner without due process under Pakistan Army Act, 1952---High Court directed the authorities to modify order of retirement of petitioner by deleting word "compulsory" therefrom---Petition was allowed accordingly.

Sindh High Court Bar Association and another v. Federation of Pakistan and others PLD 2009 SC 879 and Federation of Pakistan and others v. Muhammad Ashraf and others 2008 SCMR 415 ref.

Petitioner in person.

Muhammad Naseem Kashmiri, D.A.-G. for Respondents.

2012 P L C (C.S.) 566

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

HUMAIRA HASSAN

Versus

FEDERATION OF PAKISTAN and 2 others

Writ Petition No.26501 of 2010, heard on 15th December, 2011.

(a) Constitution of Pakistan---

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4---Constitutional petition---Maintainability---Promotion---Fitness-cum-eligibility---Terms and conditions of service---Scope---Petitioner assailed the act of authorities for non- considering her for promotion to Basic Scale-22---Objection raised by authorities was that Constitutional petition was not maintainable---Validity---Appeal under section 4 of Service Tribunals Act, 1973, was not available to petitioner as the matter pertained to fitness-cum-eligibility---Bar under Art. 212 of the Constitution was not attracted---Petition was maintainable in circumstances.

Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 rel.

(b) Discretion---

----Considerations---Scope---Discretion cannot be based on irrelevant considerations or exercised leaving out relevant considerations.

(c) Civil Servants (Promotion to the Post of Secretary, BS-22 and Equivalent) Rules, 2010---

----Rr. 3 & 4---Freedom of Information Ordinance (XCVI of 2002), Ss.7 & 8(b)---Constitution of Pakistan, Arts.4, 10A, 19A & 199---Constitutional petition--- Civil service--- Promotion--- Non-consideration---Minutes of meeting---Freedom of fair trial and information---Petitioner was a civil servant and her grievance was that she was not considered during Meeting, for promotion to Basic Scale-22---Validity---Right to due process under Art.4 of the Constitution, read with fundamental right to fair trial and access to information under Arts.10A & 19A of the Constitution, respectively, did not permit that an order affecting prospects of promotion of civil servant was withheld from him---Final orders or decisions of public body, under Freedom of Information Ordinance, 2002, formed part of public records which should be made available to public especially, the officers against whom the orders were passed---Adverse order or decision against any officer was recorded in minutes of meetings of any public body did not exclude it from being a public record in terms of S.8(b) of Freedom of Information Ordinance, 2002---Any adverse order or decision against any officer or any member of public could retain its independent status as a public record under S.7 of Freedom of Information Ordinance, 2002, and it mattered less if the same had been incorporated or recorded as a part of any minutes of a meeting---Minutes of a meeting excluded under S.8(b) of Freedom of Information Ordinance, 2002, were minutes dealing with internal working of public body, which did not affect rights of members of public or civil servant---High Powered Selection Board was under a Constitutional and legal obligation to communicate its recommendation (decision) to concerned civil servant and not to keep it under wraps to disadvantage and inconvenience of civil servant---High Court set aside the recommendations of High Powered Selection Board against petitioner, as the same were bad in law for having been arrived at without application of mind, based on irrelevant considerations and without factoring in the relevant considerations as provided under R.4 of Civil Servants (Promotion to the Post of Secretary, BS-22 and Equivalent) Rules, 2010---High Court directed the Board to reconsider the case of petitioner afresh for promotion to Basic Scale-22 in its upcoming meeting and to exercise its discretion strictly in accordance with Civil Servants (Promotion to the Post of Secretary, BS-22 and Equivalent) Rules, 2010, and communicate a copy of the same to the petitioner---Petition was allowed accordingly.

De Smith's Judicial Review. Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, p.280; Law of Writs. V.G. Ramachandran's ps-728 and 742; Muhammad Aslam v. Vice-Chairman and others 2010 PLC (C.S.) 266 and Reference: Aman Ullah Khan and others v. Federal Government of Pakistan and others PLD 1990 SC 1092 ref.

(d) Freedom of Information Act (VI of 2005)---

----Ss. 7 & 8---Declaration and exclusion of public record---Scope.

Naveed Rasul Mirza and Haider Rasul Mirza for Petitioner.

Nasim Kashmiri, Dy. Attorney-General, Dr. Akhtar Nazir, Joint Secretary Establishment Division, Islamabad, Waheed Ahmad, Director General (Personnel), Ministry of Foreign Affairs, S. Ghazanfer Abbas, Superintendent, Establishment Division, Islamabad for Respondents.

Date of hearing: 15th December, 2011.

2012 P L C (C.S.) 600

[Lahore High Court]

Before Umar Ata Bandial, J

MUHAMMAD ASHRAF

Versus

GOVERNMENT OF PUNJAB, EDUCATION DEPARTMENT through Secretary Higher Education, Lahore and another

Writ Petition No.12783 of 2011, decided on 20th December, 2011.

Punjab Public Service Commission Regulations, 2000---

----Regln. 69---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 21-A(4)---Constitution of Pakistan, Art. 199---Constitutional petition---Lecturer in Education Department, 91 posts of---Failure of 3 candidates recommended by Public Service Commission to join service---Request by Administrative Department to Commission to give three other names from waiting list of recommended candidates---Refusal of Department to appoint petitioner despite his name finding mention at serial No. 94 of original merit list on ground that second recommendations issued by Commission were time-barred on account of R.21-A(4) of Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974---Validity---Commission had not delayed its recommendations, rather department had requested for second set of recommendations beyond period of 190 days---Department could not hold Commission responsible for a fault committed by itself---Department although having acted belatedly had acted lawfully Recommendation of petitioner's name by Commission on basis of merit list gave him a vested right for demanding his appointment---High Court accepted constitutional petition, in circumstances.

Government of N.-W.F.P. through Secretary Education Department, Peshawar and others v. Qasim Shah 2009 PLC (C.S.) 608 rel.

Rana Farman Ali for Petitioner.

Zaka-ur-Rehman Awan, Addl. A.-G. for Respondents.

2012 P L C (C.S.) 602

[Lahore High Court]

Before Ijaz Ahmad, J

AFTAB AHMAD and others

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.1102 of 2011, decided on 12th January, 2012.

(a) Words and phrases---

----"Regularization"---Definition.

(b) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Contract employee---Regularization of service---Term "Regularization" was calculated to condone the irregularities---Regularization, in circumstances, was not the de novo appointment on regular basis of the contract employees, subject to possession of newly stipulated, added educational qualification---Such was, in fact the uninterrupted continuation of the service of the previous contract employees, till the completion of their normal tenure---Act of regularization of service, would not create a new job, but only would remove the lurking fear of sudden severance of their services, that would make their employment status equal to their contemporaries appointed on regular basis on the same day.

Secretary (Schools), Government of Punjab, Education Department and others v. Yasmeen Bano 2010 SCMR 739 ref.

Tanveer Iqbal Khan for Petitioner.

Shahid Mehmood Abbasi, A.A.-G. for Respondents.

2012 P L C (C.S.) 606

[Lahore High Court]

Before Muhammad Yawar Ali, J

MUHAMMAD NADEEM SHAKIR

Versus

GOVERNMENT OF PUNJAB, COMMUNICATION AND WORKS DEPARTMENT, LAHORE through Secretary and 5 others

Writ Petition No.11661 of 2011, decided on 19th September, 2011.

(a) Punjab Civil Servants Act (VIII of 1974)---

----S. 9---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Transfer---Terms and conditions of service---Petitioner had challenged his transfer from one place of working to another---Validity---Transfer of a civil servant was a matter relating to the terms and conditions of service and bar contained in Art.212 of the Constitution, would be fully attracted---Constitutional petition against transfer was not maintainable.

Khalid Mehmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 and Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others 2011 SCMR 592 rel.

(b) Constitution of Pakistan---

----Art. 189---Decision of Supreme Court---Binding nature of---Principles of law enunciated by apex court and all decisions rendered were binding on all other courts.

Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351 rel.

Malik Ghulam Qasim Rijwana for Petitioner.

Malik M. Sohail Iqbal Bhatti, Addl. A.-G. for Respondent.

Khalid Saleem Law Officer for Respondent No.2.

2012 P L C (C.S.) 609

[Lahore High Court]

Before Umar Ata Bandial, J

IMRAN ARIF RANJHA and others

Versus

PUNJAB PUBLIC SERVICE COMMISSION and others

Writ Petition No.8775 of 2011, decided on 23rd August, 2011.

Punjab Delegation of Powers (Relaxation of Age) Rules, 1961---

----Constitution of Pakistan, Art.199---Constitutional petition---Relaxation of upper age limit---Discretion, exercise of---Principle---Restraining order-- Grievance of petitioner was that authorities had discretion to grant age relaxation to public candidates for Government recruitment and such relief was extended to candidates already in Government service but not to candidates from public---Validity---Element of checking abdication of discretionary authority and application of mind by public authority vested with discretion were essential attributes for safe and proper discharge of functions by public authorities---Decision of authorities to neglect candidates from public for relaxation of upper age limit was the result of inaction and abdication of discretion by concerned public authority which had allowed such state of affairs to prevail by neglecting or avoiding a decision in the matter---Such omission to exercise discretion constituted default requiring correction---High Court directed the concerned authority to revisit the matter of relaxation of upper age limit of candidates from public for the posts under consideration; that until the authority concerned decided the matter in issue, no recommendations of successful candidates would be forwarded by Public Service Commission to Provincial Government; and that in case the authority would decide in favour of age relaxation being granted to candidates from public for the posts in question, fresh recruitment was to be commenced otherwise the Commission could forward its withheld recommendations to Provincial Government---Petition was allowed accordingly.

Uzma Rani and others v. PPSC and others W.P. No.8741 of 2011 and H.W.R. Wade and C.F. Forsyth: "Administrative Law" (Oxford, 10th Edition, page 270) ref.

Sardar Wajahat Ali Dogar for Petitioners.

Zaka-ur-Rehman Awan, Addl. A.-G. along with Muhammad Arif Qureshi, S.O. S&GAD for Respondents Nos.2 and 3.

2012 P L C (C.S.) 617

[Lahore High Court]

Before Umar Ata Bandial, J

GHULAM MUSTAFA

Versus

GENERAL MANAGER, PUNJAB PROVINCIAL CO-OPERATIVE BANK LTD. and 3 others

Writ Petition No.3812 of 2005/BWP, decided on 16th December, 2011.

(a) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Provincial Co-operative Bank---Bank Officer---Reduction to two stages in running pay scale, penalty of---Entrustment of petitioner's case by Standing Sub-Committee/Authority for confirmation of such penalty to Board of Directors of the Bank, which further entrusted same to President of the Bank/Registrar, Co-operative Societies for decision---Chairman enhanced penalty of reduction to lower post of officer---Petitioner's plea that Chairman through impugned order had deprived him of right of appeal before an independent forum---Validity---Right of appeal would flow from fundamental right of access to justice vesting in every citizen---Appellate remedy must be an independent one---Appellate power would be exercisable by an independent person with an independent mind---Impugned order could not be treated as constituting a decision of petitioner's appeal---Constitutional petition against the Bank was maintainable for same being subject to control of Co-operative Department of Provincial Government---Petitioner's fundamental right had been violated---High Court set aside impugned order, resultantly petitioner's appeal would be deemed to be pending.

The Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah PLD 1959 SC (Pak.) 210; Zainul Abidin v. Multan Central Co-operative Bank Ltd., Multan PLD 1966 SC 445 and Wazir Ali Khoja v. Muslim Commercial Bank Ltd. and others 1998 SCMR 1452 ref.

Pakistan and others v. Public at large and others PLD 1987 SC 304 and Mehram Ali and others v. F.O.P. and others PLD 1998 SC 1445 rel.

(b) Appeal (Civil)---

----Right of---Scope---Such right would flow from fundamental right of access to justice vesting in every citizen---Appellate power would be exercisable by a independent person with an independent mind---Appellate remedy must be an independent one.

Pakistan and others v. Public at large and others PLD 1987 SC 304 and Mehram Ali and others v. F.O.P. and others PLD 1998 SC 1445 rel.

Mian Ahmad Mahmood for Petitioner.

Muhammad Safdar on behalf of Ilyas Khan for Respondent.

2012 P L C (C.S.) 632

[Lahore High Court]

Before Umar Ata Bandial and Asad Munir, JJ

Ch. AMJAD HUSSAIN and 17 others

Versus

PUBLIC PROSECUTION DEPARTMENT through Prosecutor-General, Punjab, Lahore and 3 others

Intra-Court Appeal No.165 of 2011 in Writ Petition No.21820 of 2010, decided on 25th July, 2011.

(a) Punjab Criminal Prosecution Service (Conditions, Functions and Powers) Act (III of 2006)---

----S. 8(3)---Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007---Constitution of Pakistan Art.199---Law Reforms Ordinance (XII of 1972), S.3---Intra-Court appeal---Ad hoc/temporary Deputy Prosecutors General (DPG) and Additional Prosecutors General seeking retention of their services temporarily against 50% vacant posts of APG/DPG reserved to be filled through promotion---Dismissal of constitutional petition by High Court---Validity--Petitioners had not participated in selection process for regular appointment as Prosecutors---Petitioners had not sought enforcement of any legal right but based their claim merely on consideration of convenience and practicality and not on eligibility or entitlement to hold such posts---Petitioners had occupied such posts for more than one year without recommendations of Public Service Commission and against terms and conditions of their appointment orders---Government action in making appointment to public office must reflect transparency and fairness---Absence of eligible persons to occupy posts reserved to be filled through promotion would not mean that ineligible persons should be made to retain the same---Court of law could not sanction such a course of action---Intra-court appeals were dismissed in circumstances.

Naeem Tariq Sanghera and others v. Chief Secretary, Government of Punjab, Lahore and others 2010 SCMR 1587 and Abid Iqbal Hafiz and others v. Secretary Public Prosecution Department Government of the Punjab Lahore and others PLD 2010 SC 841 rel.

(b) Civil service---

----Appointment---Scope---Government action in making appointment must reflect transparency and fairness.

Farooq Amjad Meer for Petitioners.

Ahmed Rauf, Addl. A.-G. along with Abdul Samad, A.P.G. and Mumtaz Dogar, Law Officer for Respondents.

2012 P L C (C.S.) 650

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

ADNAN ALI GURMANI

Versus

MANAGING DIRECTOR PASSCO, LAHORE and 2 others

Writ Petition No.4196 of 2011, decided on 24th May 2011.

(a) Rule of Business (Federal), 1973---

----R. 11---Constitution of Pakistan Art.199---Constitutional petition---Compensatory policy---Consultation with Establishment Division---Employment to son of deceased official---Father of petitioner died during service and petitioner sought employment under compensatory policy---Authorities declined to employ the petitioner on the ground that such employment was only for children of officials in Basic Scale 1 to 15---Validity---Nowhere in the policy, restriction was placed requiring that benefit of employment would be restricted to a child of only those employees who have died while serving government in Basic Scale 1 to 15---Contention of authorities was misconceived as requirement of policy was that in addition to payment of certain health care, pensionary and monetary benefits etc. employment for posts in Basic Scale 1 to 15 on two years contract without advertisement would also be awarded to family of deceased official---Policy in question did not exclude employees' children serving in Basic Scale 16 or higher grades from taking advantage of the policy---Mandatory provision of consultation with Establishment Division had not been undertaken and authorities did not have any general or special delegation given by Establishment Division to formulate and put in service policy in question for the employees---High Court declared that the policy was void ab initio, bad in law and of no legal effect---High Court directed the authorities to process application of petitioner in accordance with the policy of Establishment Division---Petition was allowed accordingly.

PLD 2002 SC 1063; 2006 SCMR 1240 and 2002 PLC (C.S.) 211 ref.

(b) Rule of Business (Federal), 1973---

----R. 11---Compensatory policies---Principles---Compensatory policies are prepared keeping in view the general well being of employees who are likely to be affected/benefited by those policies and therefore, are prepared with much thought, thorough inquiry and consultation after taking into account their social, moral and financial implications---Mandatory for Divisions or Corporations working under the control of Federal Government to prepare such policies in consonance with guidelines of Federal Government---On the whims of various regimes, who may govern/administer such Corporations, from time to time, such benefits cannot be taken away or reduced from minimum threshold level provided by guiding policy of Federal Government---Such policies having been aimed to provide a stop gap arrangement for sustainability of deceased government employees' families, on compassionate grounds, therefore, a Division or a Corporation may give higher or better compensation package than minimum level provided by Federal Government---Such polices can never act as a sword to chop off some benefits from minimum threshold level of guiding policy---Prior consultation with Establishment Division is mandatory, even in those cases where Divisions or Corporations working under the control of Federal Government wish to give enhanced benefit as compared to those in the policy given by Establishment Division.

Muhammad Maalik Khan Langah for Petitioner.

Syed Jaafer Tayyar Bokhari for Respondents.

Abdul Razaq Raja, Standing Counsel.

2012 P L C (C.S.) 665

[Lahore High Court]

Before Syed Iftikhar Hussain Shah and Rauf Ahmad Sheikh, JJ

Mrs. ABIDA JABEEN

Versus

SECRETARY EDUCATION (SCHOOLS) GOVERNMENT OF PUNJAB, LAHORE

I.C.A. No.190 of 2011 in Writ Petition No.6773 of 2011, decided on 7th June, 2011.

(a) Punjab Civil Servants Act (VIII of 1974)---

----S. 9---Law Reforms Ordinance (XII of 1972), S.3---Constitution of Pakistan, Arts.34, 35 & 212---Civil servant, transfer of---Intra-court appeal---Appellant was posted at place "M"; she was promoted from BS-18 to BS-19, and was transferred from place "M" to another District---Appellant had assailed her transfer order to be against the wedlock policy of the Government and contended that her husband was appointed at place "M" and that she was residing with him there; that in case of transfer she would have to travel about 220 Kilometers every day on public transport and that order of her transfer was violative of provision of Arts.34 & 35 of the Constitution---Validity---Under provisions of S.9 of Punjab Civil Servants Act, 1974, a civil servant was bound to serve anywhere within or outside the Province---Appellant had no vested right to be posted against a particular place and question of infringement of her legal rights allegedly vested under Art.34 & Art.35 of the Constitution, would not arise at all---Transfer Policy was just a guideline which had no binding force---Competent Authority, was to see the feasibility that husband and wife could be posted at one station or not---Impugned order passed by Single Judge of High Court, which was in accordance with law, was maintained, in circumstances.

Prof. Dr. Tariq Iqbal Bhutta v. Government of the Punjab and others 1996 PLC (C.S.) 552 and Kh. Abdul Qayyum v. Government of AJK 1998 PLC (C.S.) 1321 ref.

Peer Muhammad v. Government of Balochistan 2007 SCMR 54 and Secretary Education N.-W.F.P. Peshawar and 2 others v. Mustamir Khan and another 2005 SCMR 17 rel.

(b) Constitution of Pakistan---

----Arts. 189 & 212---Decision of Supreme Court---Binding force---Ouster of jurisdiction of High Court and civil courts---Scope---All the decisions of the Supreme Court deciding the question of law, were binding on all other courts---Article 212 of the Constitution, ousted the jurisdiction of all other courts and the orders of the Departmental Authority, even though without jurisdiction or mala fide could be challenged only before the Service Tribunal and the jurisdiction of civil courts, including High Court was specifically ousted.

Javaid Iqbal Adum and Habeeb Ullah Nehang for Appellant.

2012 P L C (C.S.) 678

[Lahore High Court]

Before Ch. Muhammad Younis, J

AMAAR NAZIR QURESHI

Versus

DIRECTOR-GENERAL PAKISTAN POST and 2 others

Writ Petition No.8657 of 2011, decided on 11th October, 2011.

Punjab Civil Servants Act (VIII of 1974)---

----S. 9---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Transfer---Petitioner had assailed transfer order, whereby he was transferred from one place of working to another---Government servant, could be posted and asked to serve anywhere---No employee had any vested right to be posted at any particular place---High Court had no jurisdiction in the matter due to bar of Art.212 of the Constitution---Constitutional petition in relation to the matter connected with the terms and conditions of service, in respect whereof the Service Tribunal had jurisdiction was not maintainable in view of provisions of Art.212 of the Constitution.

Zahid Akhtar v. Government of the Punjab PLD 1995 SC 530 distinguished.

PLD 2011 SC 963=2011 PLC (C.S.) 1489; 2011 PLC (C.S.) 648; 2007 SCMR 54; 2008 SCMR 583; 2009 SCMR 61; PLD 1997 SC 351 and 1998 SCMR 1948 ref.

Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54 and Khalid Mahmood Wattoo v. Government of the Punjab 1998 SCMR 2280 rel.

Muhammad Maalik Khan Langaah for Petitioner.

Syed Asif Raza Gillani and Sardar Abid Khan Jatoi for Respondents.

Kh. Noor Mustafa, D.A.-G.

2012 P L C (C.S.) 733

[Lahore High Court]

Before Umar Ata Bandial, J

WAHEED AHMAD and others

Versus

E.D.O.(R.) and others

Writ Petition No.4901 of 2009, heard on 21st June, 2011.

Constitution of Pakistan---

----Art. 199---Punjab Recruitment Policy, 2004---Constitutional petition---Recruitment----Marks in interview---Criteria---Petitioners applied for posts of Patwaris advertised by authorities but remained unsuccessful---Petitioners assailed selection process on the ground that less marks secured by successful candidates due to low grades in educational qualifications were covered-up by high marks awarded to them in interview---Validity---Recruitments in question were made in year 2006, under Recruitment Policy, 2004---Petitioners were both graduate and had qualifications well above matriculation threshold fixed as qualification for eligibility under Recruitment Policy, 2004---Criteria of computer literacy was of marginal significance because familiarity with and not a qualification in that skill was required---Given the opportunity and time for preparation, the requisite skill could be picked up swiftly, if it was not already possessed by petitioners---Authorities were not able to justify selection process on the touchstone of transparency, good governance and fairness---Such were the attributes of all lawful executive actions, in particular appointments made to public posts---Selection process adopted by authorities suffered from arbitrariness, unguided exercise of discretion and absence of record to justify validity of appointments made---High Court directed that remaining vacant seats of Patwaries would be filled by open competition based on academic achievement, a written examination comprising not less than 70% marks being counted towards selection---High Court further directed that remaining 30% marks should be reserved for interview but such marks were to be sub-divided and awarded on the basis of relevant criteria determined with approval of authorities for assessing a candidate's ability and suitability---Petition was disposed of accordingly.

Mushtaq Ahmad Mohal v. Hon'ble Lahore High Court Lahore 1997 SCMR 1043; Ashok Kumar Yadav and others v. State of Haryana and others AIR 1987 SC 454; Vikram Singh and another v. The Subordinate Services Selection Board, Haryana and others AIR 1991 SC 1011; lmran Hussain v. WAPDA and others PLD 2010 Lah. 546 and Syed Muhammad Raza v. General Manager, WAPDA and others 1994 MLD 1647 rel.

Khawar Ikram Bhatti for Petitioners.

Zaka-ur-Rehman Awan, Addl. A.-G. along with Khalid Mehmood Sheikh, Secretary, BOR, Lahore, Sher Bahadar, Additional Commissioner, Faisalabad and Liaqat Bhatti, Deputy Secretary (R) for Respondents.

Raja Tasawar Iqbal for Respondents Nos.6 to 9.

Ch. Muhammad Rafiq Waraich for Respondents Nos.6 to 10 and 12 to 16.

Date of hearing: 21st June, 2011.

2012 P L C (C.S.) 752

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

REHANA TASLEEM

Versus

DISTRICT COORDINATION OFFICER, LAYYAH/CHAIRMAN RECRUITMENT COMMITTEE, LAYYAH and 5 others

Writ Petitions Nos.9835 and 5306 of 2010, decided on 21st April, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioners, who were holding Diploma in Physical Education from 'Skill Development Counsel Islamabad' applied for the post of Senior Elementary School Educator (Physical), were refused to issue interview calls on the ground that issuer institution of diploma, was not a recognized Institution by Higher Education Commission---Qualification required for post concerned, was B.A., with Junior Diploma in Physical Education or Higher Professional qualifications from the concerned institution---Petitioners, though had qualification of M.A., along with diploma in physical education from Skill Development Council, but said council was not authorized to impart physical education courses---Higher Education Commission was to approve the courses and the institution for imparting the education in different subjects---Physical Education, was an independent subject and in Punjab only two colleges i.e. Government Gulberg College and Government College Township, which offered Physical Education, were approved by Higher Education Commission---Petitioners had the Diploma of Physical Education, but from the unrecognized institution---Petitioners, in circumstances, had rightly been refused the call letters or to accept them for the post in question.

Ch. Pervaiz Akhter Gujjar for Petitioner.

Ahsan Raza Hashmi, Advocate.

Muhammad Shoaib Khan Buzdar for Respondents.

Muhammad Javed Saeed Pirzada, Asstt. A.-G. Punjab with Salma Shahi Deputy D.E.O. for Respondent.

2012 P L C (C.S.) 772

[Lahore High Court]

Before Muhammad Qasim Khan, J

IGNEES MARIA and another

Versus

DISTRICT COORDINATION OFFICER, DISTRICT BAHAWALNAGAR and 2 others

Writ Petitions Nos.2205, 1548, 2961, 2850, 3661, 1699, 1515, 1531, 2226, 3292, 2851, 2787, 3814 and 1563 of 2010/BWP, decided on 30th November, 2010.

(a) Maxim---

----A communi observantia non est recedendum---Meaning---When law requires a thing to be done in a particular manner, it has to be done in that way, otherwise it has no sanctity in the eyes of law.

(b) Interpretation of Constitution---

----Checks and balances---Scope---Success of whole system of developed society depends upon checks and balances---Where Constitution or relevant statutes bestow power on some authority, at the same time it has been ensured that such power or authority does not go unchecked or unbridled.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Illegal order---If any order is passed without lawful authority and without jurisdiction, High Court can look into such illegal exercise.

(d) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Recruitment---Eligibility and fitness---Scope---If eligibility and fitness is with regard to fresh appointment and all appointment matters if based on mala fide, without lawful authority or result of exercise of defective jurisdiction, the same can be validly thrashed by High Court in exercise of its Constitutional jurisdiction..

PLD 1974 SC 139; 1975 PLC 781 and 1976 PLC 638 rel.

(e) Constitution of Pakistan---

----Arts. 4, 14, 18 & 199---Punjab Contract Appointment Policy, 2004---Constitutional petition---Illegal appointments---Petitioners were aggrieved of selection process adopted by authorities for appointment in question---Contention of petitioners was that the appointments were violative of Punjab Contract Appointment Policy, 2004---Plea raised by authorities was that there were only minor procedural lapses having gone through the entire relevant record---Validity---Irregularities agitated by petitioners and established on record were not minor procedural lapses rather were all violative of basic scheme of recruitment, which had gone to the root of entire selection process and such illegality conducted process could not be protected under any canon of law---High Court being custodian of fundamental rights could validly issue writ, direction or order in exercise of its authority---Officials ignored procedure provided by government for recruitment and also did not constitute Recruitment Committee in accordance with law---Such fact created frustration and hatred in the minds of ignored applicants and was hit by Art.14 of the Constitution---By depriving legible candidates, authorities refused rights of persons having better qualification and entitled to be appointed and infringed rights of profession guaranteed by Art.18 of the Constitution and called for interference by High Court to strike down the same to ensure protection of citizen---High Court declared entire recruitment process in question as illegal, coram non judice based on nepotism, colourable exercise of jurisdiction, violative of fundamental rights guaranteed by the Constitution and set aside the same---Petition was allowed accordingly.

Muhammad Suleman v. Additional Deputy Commissioner (General) Lahore Cantt PLD 2000 Lah. 262; Dr. Ikramullah v. District Coordination Officer, Gujranwala and 6 others 2004 PLC (C.S.) 921; Dr. Muhamamd Sadiq Saleem v. Secretary Health, Government of Punjab, Lahore and 6 others 2008 PLC (C.S.) 25; Dr. Najam Iqbal Ahmed v. Province of Punjab and others Writ Petition No.1916 of 2007-BWP; K.M. Asaf v. Abdullah Malik and another 1975 PLC 781; Province of West Pakistan v. Raja Bashir Muhamamd Khan PLD 1983 Lah. 53; Sahib and 3 others v. The State 1990 MLD 1161; Muhammad Jafar Tarar v. District Magistrate Gujranwala and another 1990 CLC 281; CHIEF SECRETARY PUNJAB and others v. ABDUL RAOOF DASTI 2006 PLC (CS) 1278 and Abdul Jabbar Memon and others Human Rights Cases 1996 SCMR 1349 ref.

(f) Locus poenitentiae, principle of---

----Ill gotten gains---Scope---Principle of locus poenitentiae cannot be pressed into service to protect ill gotten gains---If some benefit has been obtained in sheer disregard to settled procedure and it also has been done by tarnishing rights of other eligible persons, then such benefit cannot be maintained perpetually.

(g) Fundamental Rights---

----Fundamental rights are not static document and should be interpreted in the light of needs of the day.

(h) Constitution of Pakistan---

----Art. 2A---Objectives Resolution---Scope---Objectives Resolution casts a heavy duty upon Executive, Legislature and Judiciary to be more careful with regard to fundamental rights of citizens as such rights have been awarded by divine, respect and announced by the Holy Prophet (PBUH).

(i) Good governance---

----Public functionaries---Duties---Every public functionary is supposed to function in good faith honestly and within precincts of its powers so that person concerned should be treated in accordance with law.

Miss Samina Qureshi, Ch. Shafi Muhammad Tariq, Ahmad Mansoor Chishti, Ch. Riaz Ahmad, Abdul Rasheed Rashid and Mian Noor Ali Watoo, for Petitioners.

Muhammad Aslam Khan Dhukar, Abdul Khaliq Sadozai, Mian Faiz-ul-Hassan, Abdul Ghaffar Chughtai, Mian Muhammad Jabbar, Malik Mumtaz Akhtar, A.-A.-G., Aizaz Ahmad Khan, Executive District Officer (Education) Bahawalnagar, Mrs. Fozia, District Education Officer (SE), Bahawalnagar, Mrs. Imtiaz Kausar, Deputy District Education Officer (WE)­ Bahawalnagar; Abdul Qayum, Assistant from the office of DEO (SE), Bahawalnagar, Javed Ahmad Bajwa Deputy District Education Officer- Fortabbas, Qaim Ali Khan, Deputy District Education Officer­, Minchinabad, Shoukat Ali Lodhi, Deputy District Education Officer-Haroonabad for Respondents.

Date of hearing: 30th November, 2010.

2012 P L C (C.S.) 807

[Lahore High Court]

Before Sh. Ahmad Farooq, J

MUHAMMAD TANVEER

versus

GOVERNMENT OF PAKISTAN and others

Writ Petition No.27251 of 2011, decided on 8th February, 2012.

(a) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Civil service---Discrimination---Contract appointment---Re-instatement in service---Petitioner was appointed in a Cell working in Federal Government, on contract basis and his grievance was that similarly placed other 27 employees had been regularized, whereas he was terminated---Plea raised by authorities was that there was a specific condition in appointment letter that department had absolute discretion to terminate services of petitioner without assigning any reason---Validity---Non-assigning of reasons, non-communication and non-existence of reason were entirely different things---Termination of appointment without existence of any cogent reason or cause was not warranted and was an act of mala fide---When the Cell had acquired permanent status and decision in that regard was taken much before termination order passed against petitioner, temporary rights attached to appointment of petitioner matured into permanent rights---Expression used in appointment letter, "contract appointment" was distinguishable from appointment to a post under Government but not necessarily meant that petitioner who was not a civil servant, was not holding any public office---Public element was attached to the appointment and reasonable basis for drastic and sweeping action should be there in support of decision against petitioner---In the case of contract employees or where Rules or instructions adopted by authorities were surrendered to Statutory Rules or Statute, the pleasure of Master was subject to control of Government and employee would become entitled to statutory protection---High Court in exercise of Constitutional jurisdiction, set aside order terminating service of petitioner as the same was illegal, without lawful authority and of no legal effect---High Court directed the authorities to reinstate petitioner in service immediately from the date he was terminated---Petition was allowed accordingly.

Mirza Rizwan Ahmed v. Chairman, Technical Education and Vocational Training Authority Government of Punjab, Lahore and another 2008 PLC (C.S.) 224 and Shahid Farooq v. Water and Power Development Authority through Chairman and 3 others 2011 PLC (C.S.) 1034 rel.

The Evacuee Trust Property Board and another v. Muhammad Nawaz 1983 SCMR 1275; Roshan Khan v. Director Schools and Literacy, N.-W.F.P., Peshawar and others 2007 SCMR 599; Syed Fayyaz Hussain Qadri v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others PLD 1972 Lah. 316 and LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others 2009 CLD 1489 rel.

(b) Constitution of Pakistan---

----Arts. 4, 8, 25 & 199---Judicial review---Discretion---Scope---If State action, which contains a pubic element is excluded from power of judicial review, the same would be an unrealistic approach---Whole concept of unfettered discretion is inappropriate to public authority, which possesses power solely in order that it may be used for public good---Uncontrolled and unguided discretion of an administrative authority comes in conflict with equality of protection clause contained in Chapter of Fundamental Rights of the Constitution---Equality of citizens give rise to two basic questions: First to what extent legislature can delegate legislative functions to other bodies and second to what control judiciary can exercise over departmental action, and atrocities of the executive---Where provision of law is offending against spirit of Art. 8 of the Constitution, it has the effect of invasion upon rights of citizens by anybody, no matter whether by a private individual or public functionary, it cannot be justified on any scale---For achievement of laudable object contained in Arts.4, 18 and 25 of the Constitution, High Court is entitled to strike down any provision if it is obnoxious to the Constitutional guarantee provided by Chapter of Fundamental Rights of the Constitution---Laudable objects, contained in Arts.4, 18 and 25 of the Constitution cannot be achieved until actions of departmental authorities are in accordance with law, impartial, transparent and without discrimination---Provisions of Arts.4, 8 and 25 are the anchor sheet of the Constitution and their violation can be brought under scrutiny of judicial review of High Court.

The Secretary, Government of the Punjab, through Secretary, Health Department, Lahore and others v. Riaz-ul-Haq 1997 SCMR 1552; Rana Asif Nadeem v. Executive District Officer, Education, District Nankana and 2 others 2008 PLC (C.S.) 715; Pakistan International Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 PLC (C.S.) 82 and Imran Ahmed Khan v. Pakistan through Secretary, Ministry of Defence and another 2008 PLC (C.S.) 820 rel.

(c) Constitution of Pakistan---

----Art. 199---Civil Procedure Code (V of 1908), O.VIII, R.6---Constitutional petition---Evasive reply---Effect---When reply put forward by respondent was evasive and there was no denial in specific terms, such reply had the effect of admission.

Abdul Sattar Goraya and Muhammad Imran Rasheed for Petitioner.

Aazar Latif, Deputy Attorney-General for Respondents.

2012 P L C (C.S.) 830

[Lahore High Court]

Before Abdus Sattar Asghar, J

USMAN GHANI and others

versus

ISLAMIA UNIVERSITY and others

Writ Petition No.2332 of 2009/BWP, decided on 13th February, 2012.

Islamia University of Bahawalpur Act (IV of 1975)---

----Ss. 11-A, 15(3), 21(ii) & 25---Constitution of Pakistan, Art.199---Constitutional petition---Appointment---Petitioners had impugned the appointment of respondent on contract basis and also his regularization in BPS-19 made by Vice-Chancellor of the University and duly approved by the Syndicate in its meeting---Petitioners contended that appointment in question was illegal, void ab initio, arbitrary, perverse, without jurisdiction and lawful authority; and of no legal effect---Validity---Syndicate, which was one of the authorities of the university, was empowered under S.25 of Islamia University of Bahawalpur Act, 1975 to create, suspend or abolish the posts as could be necessary---Syndicate could appoint university teachers and other officers of the university on the recommendation of the Selection Board; to regulate; determine and administer all other matters concerning the university; to that end could exercise all other powers in that behalf; and to perform such other functus as had been assigned to it---Simultaneously, S.15 of Islamia University of Bahawalpur Act, 1975, envisaged the powers and the duties of the Vice-Chancellor---Respondent, in circumstances, was appointed by the Vice-Chancellor on the recommendation of the Selection Board, which was approved by the Syndicate---Later on, a permanent post in BS-19 was advertised for appointment on regular basis; in response thereto thirty-eight candidates applied for that post; Selection Board after interviewing the candidates, recommended the respondent for appointment and Syndicate approved the appointment of respondent in BS-19 on regular basis from date of joining---Initial appointment of respondent on contract basis, made by the Vice-Chancellor, competent to do so, therefore, could not be termed as an order passed without any lawful authority such appointment was competently approved by the Syndicate---Petitioners, if aggrieved of any such order of the Authority, could have availed the efficacious remedy of revision before the Chancellor of the University as contemplated by S.11-A of Islamia University of Bahawalpur Act, 1975---Petitioners were neither holders of any statutory post nor their terms and conditions were governed by the statutory rules---Terms and conditions of service of the petitioners, were governed under the University statutes¸ Regulations or Rules having been issued by the Senate for its internal use---Petitioners, in circumstances lacked locus standi to invoke the constitutional jurisdiction of High Court---Constitutional petition was dismissed.

University of the Punjab Lahore and 2 others v. Ch. Sardar Ali 1992 SCMR 1093 and Ijaz Hussain Suleri v. The Registrar and another 1999 SCMR 2381 rel.

Muhammad Atif Saleem Qureshi for Petitioners.

Msud Ashraf Sheikh for Respondents Nos.1 to 4.

2012 P L C (C.S.) 846

[Lahore High Court]

Before Sh. Ahmad Farooq, J

ABDUL QADDUS KASHIF

versus

GOVERNMENT OF PUNJAB through Secretary Live Stock and Dairy Development (L&DD), Punjab, Lahore and another

Writ Petition No.26409 of 2010, decided on 6th July, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Extension of employment contract after expiry----Petitioner assailed orders of Authority whereby his representation for reinstatement in service after expiry of his employment contract was dismissed---Contention of the petitioner was, inter alia, that other employees in the Department, after expiry of their employment contracts, were reinstated in service, but the petitioner was not---Validity---Perusal of record revealed that after the expiry of the initial contract, the petitioner himself opted not to continue his service with the Department---­Terminated employees had been asked to continue their duties after the expiry of their contracts, but the petitioner did not bother to contact the Department office---Conduct of the petitioner showed slackness and disinterestedness in the matter---Petitioner submitted application before the competent Authority for extension of his contract after more than nine months---Petitioner was given an opportunity of being heard by the Authority---Case of petitioner was not at par with the other employees, and his representation was rightly dismissed by the Authority---Constitutional petition was dismissed.

Junaid Jabbar for Petitioner.

2012 P L C (C.S.) 851

[Lahore High Court]

Before Ijaz Ahmad, J

SHAHID AKHTAR and another

versus

SECRETARY, SCHOOL EDUCATION DEPARTMENT, GOVERNMENT OF PUNJAB, LAHORE and 2 others

Writ Petition No.257 of 2011, decided on 2nd June, 2011.

Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---

----R. 3(v)---Constitution of Pakistan, Art.199---Constitutional Petition---­Upper age limit, computation of---Contention of the petitioner was that petitioner being already in service had the right that the period of the petitioner's continuous service for the purpose of computation of upper age limit be excluded---Validity---Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 manifestly clarified that in case of government servant applying for a post, the period of his continuous service, for the purpose of computation of upper age limit, should be excluded---Petitioners, being already in government service, were entitled to such exclusion---Such right of a government employee could be pressed into service seeking any further employment either on contractual or permanent basis---Policy letter of department had no significance as in the hierarchy of law, the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976 stood at a higher pedestal---Petitioners were held entitled to the relaxation in their upper age limit---Period of the continuous service of the petitioners was to be excluded for the purpose of the computation of upper age limit---Authorities were directed to finalize the matter regarding the advertised vacancies in the Department accordingly---Constitutional petition was allowed.

Malik Muhammad Kabir for Petitioners.

2012 P L C (C.S.) 861

[Lahore High Court]

Before Nasir Saeed Sheikh, J

Mrs. KAUSAR A. GHAFFAR

versus

GOVERNMENT OF THE PUNJAB, CIVIL SECRETARIAT, LAHORE through Chief Secretary and 2 others

Writ Petition No.21966 of 2011, decided on 17th October, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion---Provincial Selection Board before which case of promotion to BPS-21 was placed, deferred the same and then passed order that the petitioner had failed to fulfil the eligibility threshold---Validity---Provincial Selection Board had considered the question of suitability of the petitioner and expressed opinion that she was not found to be suitable for promotion as she did not fulfil the eligibility threshold---Opinion of the Board could not be described as illegal and without lawful authority---No civil servant had an absolute right of promotion---Civil servant had a right to be considered for promotion and the petitioner's case was duly considered by the Board and did not find her to be suitable for promotion---Petitioner had herself placed on record a letter communicating some adverse remarks to her---Order communicated to the petitioner, had been passed by the Provincial Selection Board after considering the case of the petitioner---Petitioner had failed to prove that any law had been specifically violated in arriving at the order---High Court declined to assess the suitability of the petitioner for promotion---If Service Tribunal had been debarred from deciding suitability of the cases of civil servant, which primarily rested with the Departmental Promotion Authority, such an opinion of Authority/Selection Board, could not be substituted by High Court---Prayer of the petitioner that respondent be excluded from chairing the Provincial Selection Board was not substanstiated by law---Where a civil servant had been duly considered for promotion which had been denied to her, unless and until some violation of any rules or law was pointed out, the matter even not falling within the jurisdiction of the Tribunal, could not be raised before the High Court through a constitutional petition; as High Court could only pass an order after analysis as to whether an action of Departmental Authority was violative of any rules, regulations or law for the time being in force---None of such eventualities having been urged or pointed out, High Court could not interfere in the matter on such allegation.

Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Zafar Ullah Baloch v. Government of Balochistan and others 2002 SCMR 1056; Abdul Ghafoor, Supervisor/Inspector, N.H.A. v. National Highway Authority and 12 others 2002 SCMR 574; Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCMR 682; Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others 2011 SCMR 265; Government of Punjab, through Secretary Health Department, Civil Secretariat, Lahore and another v. Dr. Aman-ul-Haq, M.S. District Headquarter, Gujranwala 2000 SCMR 1805, Shamas Textile Mills Ltd and others v. The Province of Punjab and 2 others 1999 SCMR 1477; 1993 PSC 576; Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCMR 682 and Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948 ref.

Hafiz Tariq Nasim for Petitioner.

2012 P L C (C.S.) 874

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

ALI AKBAR and 2 others

versus

GOVERNMENT OF THE PUNJAB through Secretary Punjab Public Prosecution Department, Lahore and 2 others

Writ Petitions Nos.5906, 6665, 9608, 15339, 15483, 17051, 17052, 17157, 17158, 16721, 17156, C.M.Nos.2281, 2471, 2501, 2568, 2583 and 2828 of 2011, decided on 5th August, 2011.

Punjab Criminal Prosecution Service (Conditions of Service) Rules, 2007---

----R. 8(3)(4)---Notification No.DS (O&M) 5-3/2004/contract (MF) Government of Punjab, dated, 10-11-2010---Constitution of Pakistan, Art.199---Constitutional petition---Prosecution service---Contract employment---Regularization---Petitioners were employed on contract basis in Prosecution Service and their grievance was that for regularizing them in the service, their cases should be referred to Punjab Public Service Commission---Validity---Petitioners were holding posts on contract and in case they passed suitability and eligibility criteria of Punjab Public Service Commission, they be regularized and authorities would not have to create further posts for them---Difference between reference and recommendation existed as the later could create some right in favour of petitioners but reference did not create any right---Petitioners were willing and ready to fulfil all requirements of Punjab Public Service Commission for posts held by them and as such their cases fell within Notification No.DS(O&M)5-3/2004/contract (MF) Government of Punjab, dated, 10-11-2010---Petitioners had acquired knowledge and experience about posts held by them and as such could produce better result than new appointees, if selected by Punjab Public Service Commission---High Court directed the authorities to refer cases of petitioners to Punjab Public Service Commission for scrutinizing their suitability and eligibility in accordance with law on touchstone of merits and transparency---Petition was allowed accordingly.

Abid Iqbal Hafiz and others v. Secretary, Public Prosecution Department, Government of the Punjab, Lahore and others PLD 2010 SC 841 rel.

Farooq Amjad Meer for Petitioners.

Siraj-ul-Islam, Addl. A.-G. for Respondents.

2012 P L C (C.S.) 941

[Lahore High Court]

Before Umar Ata Bandial, J

FARRUKH RIAZ and 4 others

versus

GOVERNMENT OF PUNJAB through Home Secretary, Civil Secretariat, Lahore and 2 others

Writ Petitions Nos.4741, 21080, 20085, 20127, 20361, 18096, 18968, 20009, 20075, 20222, 20461, 20736, 20985, 20850, 12221, 5972, 5449, 6242, 6205, 6187, 6182, 6151, 6119, 5880, 5772, 5758, 5729, 5593, 5572, 5550, 5536, 5471, 5468, 16228, 18343, 18471, 18453, 18497, 18842, 19022, 19023, 19024, 18830, 19160, 19219 and 19867 of 2011, heard on 28th September, 2011.

Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---

----R. 3(v)---Police Rules, 1934, R.12.6---Police Order (22 of 2002), Arts.7(3), 112 & 185---Constitution of Pakistan, Arts.8(1)(2) & 199---Constitutional petition---Appointment of Assistant Sub-Inspectors of Police---Age limit---Relaxation of---Advertisement with regard to appointment of the post of Assistant Sub-Inspectors, had provided for all candidates to meet the "Age limit" 18 to 25 years and provided that no relaxation in age would be allowed---Candidates, who were employees of Police Department, except for meeting the age limit fixed in the advertisement, satisfied all other criteria of eligibility to compete in the selection had sought relaxation of age limit under the provisions of Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---Validity---Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976, stood excluded by the Special provisions of R.12.6 of the Police Rules, 1934 which provided the prescribed age limit 18 to 25 years for recruitment of candidates of the post of Assistant Sub-Inspectors through Public Service Commission in open competition---Police Order, 2002 and Police Rules, 1934 were special laws governing the conditions of service in the subordinate ranks of the Police force, whereas the Civil Servants Act, 1974; and correspondingly, the Rules framed thereunder, including the Upper Age Limit Rules, were of general application, which stood excluded in the matter of terms and conditions of service of such Officers of the Police force---Constitutional touchstone for the said classification was provided in Art.8(1)(2) of the Constitution---Police Order, 2002 and Police Rules, 1934 being special laws, pertained to a force "charged with the maintenance of Public order", accordingly, fundamental rights under the Constitution, were not available to members of the Police force for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them---Candidates who were departmental candidates in the selection of the post of Assistant Sub-Inspectors, through Public Service Commission in open competition were not entitled to receive the benefit of the Punjab Civil Servants Recruitment (Relaxation of Upper Age Limit) Rules, 1976---Constitutional petitions were dismissed.

Muhammad Qasim and others v. Home Department 2004 PLC (C.S.) 69; Ehsan Ullah and 3 others v. IGP 2006 PLC (C.S.) 964 and Ghulam Mustafa v. PPSC 2008 PLC (C.S.) 1117 ref.

I.G.P. v. Musthaq Ahmad Warraich PLD 1985 SC 159 rel.

Junaid Ghafoor for Petitioners.

Mushtaq Ahmad Mohal, Naseem Sabir Ch., Ch. Arshad Javaid, Muhammad Zaman Bhutta, Nafeer A. Malik, Ch. Imtiaz Ahmad, Malik Ijaz Hussain Gorcha, Muhammad Sohail Bhatti , Ch. Muhammad Jawad Zafar, Khadim Hussain Khokhar, Ajmal Khan Kakar, Muhammad Faisal Bajwa, Malik Ijaz Ahmad Phularwan, Rana Zulfiqar Ali, S.M. Hussain, Khalid Jamil, Rai Wali Muhammad Khan, Syed Qandeel Hussain Naqvi, Nawab Saeed Ullah Khan, Saadullah, Nasir Razzaq Khan Malkera, Tauqeer A. Awan, Javaid Bashir, Aftab Raheem, Ch. Kausar Ali, S.M. Aflatoon Jhakhar, Naveed Ahmad Khawaja, Ch. M. Lehrasab Khan Gondal, Zulfiqar Ahmad, Naeem Sabir, Ch. Muhammad Ilyas Bhatti, Zulfiqar Ahmad Warraich, Rai Zamee-ul-Hassan, Malik Muhammad Awais Khalid, Malik Shehzad Sipra, Khalid Mehmood Bhatti and Sh. Muhammad Waqas (in connected petitions).

Zaka-ur-Rehman Awan, Addl. A.-G. along with Raja Muhammad Farooq, Deputy Director (Legal), PPSC, Muhammad Shafiq DSP (Legal), I.-G. Office and Muhammad Saleem D.S.P. (Legal), CCPO Office for Respondents.

2012 P L C (C.S.) 948

[Lahore High Court]

Before Abdus Sattar Asghar, J

TANVEER HUSSAIN

versus

DIRECTOR, AGRICULTURE (ECONOMICS AND MARKETING), PUNJAB, LAHORE and 3 others

Writ Petition No.5485 of 2011/BWP, decided on 28th March, 2012.

Punjab Agricultural Produce Market Ordinance (XXIII of 1978)---

----S. 17---Constitution of Pakistan, Arts.199 & 212---General Clauses Act (X of 1897), S.21---Constitutional petition---Maintainability---Locus poenitentiae, principle of---Applicability---Petitioner was employee of Market Committee and assailed orders passed by authorities whereby his promotion was set aside---Plea raised by authorities was that as the petitioner was public servant, therefore, Constitutional petition was not maintainable---Validity---Employees of Market Committee, a corporate body, could not be termed as employees of Provincial Government nor they held a post in connection with affairs of the Province---Such employees were neither members of local council nor a civil servant and could not invoke jurisdiction of Service Tribunal, therefore, Art.212 of the Constitution did not create any bar for employees of market committee to invoke jurisdiction of High Court under Art.199 of the Constitution---Once petitioner was promoted after fulfilling all codal formalities by competent authority, the same could not be questioned or reverted on the ground that post in question had been filled through initial recruitment under some rules---Matter being past and closed transaction could not be reopened under the principle of locus poenitentiae---Orders passed by authorities against petitioner were neither based on principle of justice and equity nor tenable in law---High Court declared orders in question as illegal, void and ineffective against the rights of petitioner and the same were set aside---Petition was allowed accordingly.

Province of the Punjab through Secretary, Agriculture, Government of Punjab and others v. Zulfiqar Ali 2006 SCMR 678; Majid Ahmed v. Chairman, Market Committee, Baddu Malhi and 2 others 1986 PLC (C.S.) 474 and Qazi Akhtar Ali, Secretary, Market Committee Bhalwal, District Sargodha v. Director of Agriculture (Economics and Marketing) Punjab and others 2000 PLC (C.S.) 784 ref.

Shabbir Ahmed Bhutta for Petitioner.

Muhammad Tahir Saeed Ramey, A.A.-G. for Respondents.

2012 P L C (C.S.) 956

[Lahore High Court]

Before Umar Ata Bandial, J

JAVAED AKHTAR and 4 others

versus

PROVINCE OF PUNJAB through Secretary Agriculture, Lahore and others

Writ Petitions Nos.11406, 3878, 18793 and 14708 of 2011, heard on 31st January, 2012.

Punjab Civil Servants Act (VIII of 1974)---

----S. 8---Punjab Agriculture Department (Extension and Adaptive Research Wing) Service Rules, 2007---Constitution of Pakistan, Art.199---Constitutional petition---Regularization of post---Promotion quota---Applicability---Petitioners were appointed on contract against regular posts and not against specially created posts---Petitioners sought regularization of their posts on the ground that they were selected through competitive selection by Public Service Commission and maintained satisfactory service record---Validity---Even if the promotees were fewer in number than the reserved seats under promotion quota yet such seats should be kept vacant for future utilization by promotees was flawed---Civil servants had vested right to be 'considered for promotion' but had no absolute right `to be promoted'---Consideration for promotion had subjective and objective elements and therefore, seniority alone could not create certainty of promotion---Presumptive and prospective right of promotion claimed by respondents was contingent in nature and could not defeat right of petitioners to regularization of service which was a right duly vested in nature after petitioners had fulfilled all conditions attached thereto---Petitioners could not be denied their such vested right on the basis of prospective right claimed by respondents---Authorities could always increase number of posts, as and when need would arise, in order to accommodate deserving promotees---High Court did not find any ground for posts of petitioners to be kept vacant by removing them from the same and thereby defeating their present vested right for the sake of accommodating future expectation of promotion of respondents to such posts--- Petition was allowed in circumstances.

Ch. Javaid Akhtar Jajja for Petitioners.

Sharjeel Adnan Sheikh and S. Waqar H. Naqvi for Petitioners (in connected Petitions).

Masood Ahmad Riaz and Zaka-ur-Rehman Awan, Addl. A.-G. for Respondents.

2012 P L C (C.S.) 988

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

AKBER ALI----Petitioner

Versus

SECRETARY SCHOOLS, EDUCATION DEPARTMENT GOVERNMENT OF PUNJAB, LAHORE and 3 others

Writ Petition No.4031 of 2012, decided on 21st February, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil service---Contract appointment---Termination of service on the basis of forged domicile certificate---Validity---Petitioner had procured appointment on the basis of certificate of domicile which had been cancelled by the competent authority being fake and forged, and the same was not challenged by the petitioner in any court of law---Appointment of the petitioner had been made on the condition that if he had obtained said appointment on the basis of forged documents, or deceit; the appointment shall be considered void ab initio---Domicile certificate of the petitioner was found fake and forged, and the competent authority had cancelled the same, therefore, having accepted the condition of appointment, the petitioner had no locus standi to file the Constitutional Petition---Opportunity of being heard was also provided to the petitioner, but the petitioner could not defend his conduct---Constitutional jurisdiction of High Court was discretionary in nature; and could not be exercised to perpetuate ill-gotten gains----Constitutional Petition was dismissed.

Abdul Haque Indhar v. Province of Sindh through Secretary Forest, Fisheries and Livestock Department Karachi and 3 others 2000 SCMR 907; The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 and Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 230 rel.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction of High Court---Scope---Constitutional jurisdiction of High Court was discretionary in nature; and could not be exercised to perpetuate ill-gotten gains.

Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 230 rel.

(c) Administration of justice---

----Authority that had the power to make an order; also had the power to undo such an order.

(d) General Clauses Act (X of 1897)---

----S. 21---Authority which could pass an order, was entitled to vary, amend, add to or rescind such order.

The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin PLD 1992 SC 207 rel.

S. Hamid Raza Bukhari for Petitioner.

2012 P L C (C.S.) 1011

[Lahore High Court]

Before Ijaz Ahmad Chaudhry, C.J.

YAHYA KHAN

Versus

DIRECTOR COMMERCIAL ACCOUNTS PTCL and another

Writ Petition No.16458 of 2010, decided on 22nd December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Fixation of pay---Petitioner had sought setting aside of order whereby fixation of pay of the petitioner was declined for the reason that he had not fulfilled the requisite condition of completion of specified course---One of the terms of letter dated 27-6-1995, offering appointment to the petitioner as Lineman (BPS-4) was successful completion of 'LM-1' course (three months duration)---Petitioner accepted the offer and joined the said post; whereafter condition of completion of 'LM-1' course was to be fulfilled by him on his nomination by the department for said course, and it was not within the domain and control of the petitioner to join said course of his own---Department had failed to show anything to the effect that the petitioner was nominated to undertake said training course, but he refused to do so---In absence of such order, the department could not take stand that petitioner did not fulfil the terms and conditions of the letter of appointment---Impugned order, in the shape of an objection raised at the time of fixation of pay of the petitioner in grade BS-8 to which he was promoted from BS-4, was illegal---Petitioner had undertaken the required course in the year 2000 and the impugned order raising the objection that service of the petitioner would be considered as regular on completion of 'LM-1' course, was ill-founded and could not have been raised in year 2010 as at that time the petitioner had completed required course---Employer was a statutory body being the creation of an Act, High Court had ample power to exercise its constitutional jurisdiction in the matter where patent illegality or material irregularity was committed by the functionaries in connection with the affairs of the Federation---Objection of counsel for employer regarding maintainability of petition, did not carry much weight, in circumstances.

Executive Council Allama Iqbal Open University Islamabad v. M. Tufail Hashmi 2010 SCMR 1484 ref.

Syeda Feroza Rubab for Petitioner.

Naveed Inayat Malik, Dy. A.-G. for Respondents assisted by Rao Qasim Ali Khan for Respondent No.1.

2012 P L C (C.S.) 1025

[Lahore High Court]

Before Ayesha A. Malik, J

ASMA HAFEEZ

Versus

CITY POLICE OFFICER, GUJRANWALA and others

Writ Petition No.14174 of 2012, heard on 11th June, 2012.

(a) Punjab Service Tribunals Act (IX of 1974)---

----S. 5---Constitution of Pakistan, Arts.199 & 212---Constitutional jurisdiction of High Court---Scope---Civil service---Service Tribunal, powers / jurisdiction of---Petitioner sought direction for implementation of the judgment of the Service Tribunal in her favour---Maxim: Quando lex aliquid alicui concedit concedere videtur et id , sine quo res ipsa esse non potest---Applicability---Contention of the petitioner was that the Service Tribunal did not possess the power to implement or enforce its own judgment under the Punjab Service Tribunals Act, 1974---Validity---Section 5(2) of the Punjab Service Tribunal Act, 1974 declared that the Service Tribunal had all the powers of civil court when it decided an appeal---Meaning of expression "deciding any appeal" was not limited to bare adjudication but included the power to ensure that the decision of the Service Tribunal was executed in letter and spirit and said rule was embodied in the maxim: "Quando lex aliquid alicui concedit concedere videtur et id sine quo res ipsa esse non potest (whoever grants a thing was deemed also to grant that without which the grant itself would be of no effect)"---Whenever anything was authorized or required to be done by a statute and it was found impossible to do that which was authorized, then the law will by necessary intendment provide the authorization to do that what was required to be done---Where a statute confers jurisdiction, it also conferred by implication, the power of doing all such acts or applying such means as were essential for its execution---Doctrine of implied powers could be invoked when giving interpretation to the jurisdiction conferred upon a tribunal under a statute---When section 5 of the Punjab Service Tribunals Act, 1974 conferred jurisdiction upon a Service Tribunal to decide an appeal, it also conferred the power to ensure that the decision was complied with---Constitutional jurisdiction of High Court could not be used to enforce or implement the judgment of the Service Tribunal under the bar created by Art.212 of the Constitution, which bar was absolute for any court including the High Court under Art.199 of the Constitution of adjudicating on the terms and conditions of service and such bar would also extend to executing the order/judgment of the Service Tribunal.

2003 PLC (C.S.) 1186; PLD 1996 SC (AJ&K) 29; 2008 PLC (C.S.) 517; 2012 PLC (C.S.) 106; Interpretation of Statutes, by N.S. Bindra, Eighth Edition and The Chief Secretary, Government of Punjab, Lahore and another v. Sara Bani and another Civil Appeal No.428-L of 2010 rel.

(b) Maxim:---

----Quando lex aliquid alicui concedit concedere videtur et id, sine quo res ipsa esse non potest---Interpretation and applicability---Scope.

(c) Interpretation of statutes---

----Whenever anything was authorized or required to be done by a statute and it was found impossible do that which was authorized, then the law will by necessary intendment provide the authorization to do that what was required to be done---Where a statute confers jurisdiction, it also conferred by implication, the power of doing all such acts or applying such means as were essential for its execution---Doctrine of implied powers could be invoked when giving interpretation to the jurisdiction conferred upon a Tribunal under a statute .

Interpretation of Statutes, by N.S. Bindra, Eighth Edition rel.

Shaukat Nadeem for Petitioner.

Waqas Qadeer Dar, Asstt. A.-G. with Abdul Wahid Inspector for Respondents.

Date of hearing: 11th June, 2012.

2012 P L C (C.S.) 1034

[Lahore High Court]

Before Ayesha A. Malik, J

NAVEED IQBAL

Versus

SECRETARY, GOVERNMENT OF PUNJAB and others

Writ Petition No.11490 of 2012, decided on 31st May, 2012.

(a) Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Recruitment---Merit list---Petitioner applied for the vacancy of "instructor" and after the interview was placed at number one on the merit list; after which the authorities cancelled the recruitment process on the ground that one of the respondents (officials) had placed his son at number 2 on the merit list using undue influence---Validity---No basis were available for the authorities to allege that a merit list was not prepared or that the existing list was provisional list---Entire irregularity was in relation to the said respondent and his son; and the inquiry report found that the son of the respondent ,at serial number 2 of the merit list, was not eligible for the post; therefore in view of the same the recruitment process was suggested to be cancelled and a fresh advertisement was recommended for the post---Inquiry process did not reveal any irregularity but instead showed how the respondent used his position to process his son's case and the same could not be termed as an "irregularity in the recruitment process"---In such cases it was necessary to arrest the abuse of authority by ensuring that the same did not prejudice the merit of a deserving candidate---Any allegation pertaining to undue favour advanced by the respondent for his son could not and should not be used to cancel the entire process---Vested right was created in favour of the petitioner and the allegations had nothing to do with the petitioner as he was neither involved in the matter nor there was any complaint against him---Authority passing or making the merit list had the power to recall, modify or cancel the same, however, such power was subject to the exception that it must be done in accordance with law and it should not be to the detriment of a right accrued---High Court directed that the post should not be re-advertised and that an appointment letter should be issued in favour of the petitioner---Constitutional petition was allowed, accordingly.

Shabana Akhtar v. District Coordination Officer, Bhakkar and 2 others 2012 PLC (C.S.) 366 and Hafiz Mukhtar Ahmad v. Government of the Punjab and others 2005 PLC (C.S.) 1449 rel.

(b) General Clauses Act (10 of 1897)---

----S. 21---Locus poenitentiae, principle, of---Civil service---Recruitment---Merit list---Authority passing or making the merit list had the power to recall, modify or cancel the same, however, such power was subject to the exception that it must be done in accordance with law and it should not be to the detriment of the right accrued.

Zafar Iqbal Chohan for Petitioner.

Waqas Qadeer Dar, Asstt. A.-G. with Dr. Ayaz Ahmad Gulzar for Respondents.

Date of hearing: 31st May, 2012.

2012 P L C (C.S.) 1043

[Lahore High Court]

Before Mian Shahid Iqbal, J

JAVAID IQBAL NASIR

Versus

MANAGING DIRECTOR, PEPCO, and 2 others

Writ Petition No.4548 of 2010, decided on 19th March, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion---Anonymous complaint---Effect on promotion---Inquiry was pending against the petitioner on basis of an anonymous complaint---Neither any show-cause notice was served on the petitioner nor he was associated with the inquiry---Authorities were bound by their office order, in which it was specifically provided, "that no action was required on the basis of anonymous complaint"---More over promotion of a civil servant could not be withheld due to some pending departmental inquiry---Constitutional petition was accepted with the direction to the department to decide the case of the petitioner for promotion solely on merits and rules without being influenced or taking into consideration the pending inquiry against the petitioner.

Muhammad Ayaz Khan v. Government of Sindh and others PLC 2007 (C.S.) 716 rel.

Ch. Muhammad Naveed Shabbir Goraya for Petitioner.

Mushtaq Masood for Respondents.

Dr. Syed Zahid Bukhari, Standing Counsel.

Amir Yasin, Deputy Director Rural Electrifiction in person.

2012 P L C (C.S.) 1057

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

Dr. SHAZIA KHAWAJA

Versus

CHAIRMAN AND DEAN OF SHEIKH ZAYED POST GRADUATE MEDICAL INSTITUTE AND HOSPITAL, LAHORE and 7 others

Writ Petition No.25049 of 2011, decided on 20th December, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Promotion---Quo warranto, writ of---Scope---Conduct and motive of petitioner---Promotion of two respondents was assailed by petitioner on the ground that the same was illegal and against public policy---Validity---Grant of relief in a writ of quo warranto was not a matter of course and conduct and motives of petitioner could be looked into by High Court when such a prayer was made---Another respondent seemed to be interested to withhold promotions of two promoted respondents and for that purpose he had tried his level best before departmental authorities by not recording their Annual Confidential Reports and suspending one of the promoted respondents without lawful authority but having been unsuccessful had prima facie motivated petitioner to file petition---High Court declined to interfere in promotion of two respondents---Petition was dismissed, in circumstances.

Ghulam Rasool v. Muhammad Hayat PLD 1984 SC 385; Aziz-ur-Rehman Ch. v. M. Nasiruddin and others PLD 1965 SC 236 and Masudul Hassan v. Khadim Hussain and another PLD 1963 SC 203 rel.

Shahid Bilal Hassan for Petitioner.

Dr. Abdul Basit for Respondent No.5.

Ch. Amir-ur-Rehman for Respondent No.4.

Imran Aziz Khan for Respondents Nos.1, 3, 6 to 8.

Respondent No.2 in person.

2012 P L C (C.S.) 1062

[Lahore High Court]

Before Syed Mansoor Ali Shah, J

LIAQAT ALI CHUGTAI

Versus

FEDERATION OF PAKISTAN through Secretary Railways and 6 others

Writ Petitions Nos.25301, 25300, 25299, 26541 and 25302 of 2011, heard on 17th February, 2012.

(a) Federal Service Tribunals Act (LXX of 1974)---

----S. 4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Bar contained under Art.212 of the Constitution--- Applicability--­- Supersession of the civil servants (petitioners) by the Central Selection Board---Present constitutional petitions pertained to promotion of the civil servants to selection posts in BS-20 and BS-21---Appointment through promotion to 'selection' posts was based on 'merit', which required subjective assessment regarding "fitness" and "suitability" of the officers, to the said post subject to their eligibility---Impugned decision of supersession of the civil servants was, in effect, determination of their fitness for the posts in question---Assessment of fitness and suitability were excluded from the ambit of the Service Tribunal under S.4 of the Federal Service Tribunals Act, 1974, therefore, bar contained under Art.212 of the Constitution was not attracted to the constitutional petitions---Constitutional petitions were maintainable, in circumstances.

Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Dr. Omer Farooq Zain v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 6 others 2008 PLC (C.S.) 1012; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; W.P. No.9703 of 2009; W.P. No.7677 of 2011; W.P. No.1152 of 2011 and W.P. No.603 of 2009 ref.

Mian Abdul Malik v. Dr. Sabir-Zameer Siddiqui and 4 others 1991 SCMR 1129; Government of Punjab, through Secretary Health Department, Civil Secretariat, Lahore and another v. Dr. Aman-ul-Haq, M.S. District Headquarter, Gujranwala 2000 SCMR 1805 and Mushtaq Hussain Shah v. Director, Food, Lahore Region and others 1990 SCMR 1492 rel.

(b) Civil Service---

----Selection Board (public authority)--- Selection of officers---Subjective assessment--- Scope--- Exercise of discretion--- Scope--- Subjective assessment by a public authority must rest on an open and transparent objective criteria---Subjective assessment did not empower or grant a licence to a public authority to exercise discretion without first structuring it.

(c) Civil Servants Act (LXXI of 1973)---

----S. 9(2)(a)---Civil Servants (Appointments, Promotions and Transfers) Rules, 1973, Rr.7, 7-A & 8---Constitution of Pakistan, Arts.10A, 14 & 199---Constitutional petition---Right to fair trial---Scope---Inviolability of dignity of man, etc.---Scope---Supersession of the civil servants (petitioners) by the Central Selection Board for failing to meet the minimum requirement of Aggregate Marks of Efficiency Index---Evaluation of integrity and performance of the civil servants---Reliance on personal opinion and impression of Members of the Central Selection Board for such evaluation---Validity and legality­---Central Selection Board consciously adopted a policy to place reliance on the personal views and impressions of the Members regarding the integrity and reputation of the officers under consideration---Personal views or opinions of the Members regarding integrity and performance of the civil servants did not stem from the record i.e., the service dossier of the officers placed before them or arose from any tangible evidence tabled before the Central Selection Board---Reasons provided by the Board for superseding the civil servants did not correlate to their service dossier, which were placed before the Board-- Central Selection Board had to meticulously review the service dossier of the officers under consideration and formulate a collective opinion, but the reasons given for superseding them were purely on the basis of the personal opinions of the Members and it appeared that the service dossier was not considered---Central Selection Board was composed of 12 Members belonging to different provinces and it was difficult to imagine that all the members knew about the inefficiency and performance of the civil servants, hence, personal opinion of some members seemed to have been casually adopted by the rest of the members without independent application of mind and without carrying out a punctilious review of the service record of the civil servants---Such process adopted by Board negated the very purpose of a Central Selection Board which was expected to form a collective view after independent application of mind to the facts and circumstances of each case---Central Selection Board had failed to notice that the Revised Promotion Policy framed by the Federal Government [ESTA Code (Federal Government) Enclosure at Sr. Nos.162 & 163] which enjoyed the force of law provided for guidelines for the Board to follow---Board instead of evolving a criteria on the basis of the Revised Promotion Policy placed reliance on the personal opinions of the Members and also went against the said Policy---Where Central Selection Board had relied on other evidence collected through its own source in addition to the service dossier of the officers, it was bound to confront the same to the officer under consideration and only after granting an opportunity of defence to the said officer regarding the new evidence being introduced, place reliance on it and not otherwise---Such due process seemed to be missing in the present case, therefore, there was no room for Board to blindly rely and pass an adverse order on the basis of impressions nurtured and opinions harboured by its Members without first tabling the tangible evidence against an officer before the Board and then confronting the said evidence to the officer under consideration---Process employed by the Board of placing reliance on the personal opinion of the Members of Central Selection Board was an affront to fairness, due process and Art.10A of the Constitution---Impugned recommendations of the Board were also offensive to Art.14 of the Constitution which provided that dignity of man was inviolable---Constitutional petition was allowed, selection process carried out by Central Selection Board was declared unconstitutional and illegal and was therefore set aside and the Central Selection Board was directed to formulate a well thought out objective criteria in accordance with the Revised Promotion Policy and consider the cases of the civil servants afresh.

W.P. No.7677 of 2011 ref.

PLD 2008 SC 769; 1991 SCMR 628; 1996 SCMR 1297; Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak Secretariat, Islamabad v. Government of Pakistan through Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others 2003 PLC (C.S.) 503; Tanvir Ashraf v. Riasat Ali and 5 others 2004 YLR 659 and Kanda v. Government of Malaya 1962 AC 322 rel.

(d) Civil Servants Act (LXXI of 1973)---

----S. 9(2)(a)---Civil Servants (Appointments, Promotions and Transfers) Rules, 1973, Rr.7, 7-A & 8---Constitution of Pakistan, Art.199---Constitutional petition---Supersession of the civil servants (petitioners) by the Central Selection Board for failing to meet the set criteria i.e. the minimum requirement of Aggregate Marks of Efficiency Index---Whether said criteria was 'structured objective criteria and whether collective discretion of Central Selection Board had been lawfully exercised---Determination---Collective discretion of the Central Selection Board had been pegged on personal opinions of some of the Members of the Board and instead of relying on the criteria and factors mentioned in the Revised Promotion Policy [ESTA Code (Federal Government) Enclosure at Sr. Nos.162 & 163], the Board developed its own criteria, which was not sufficiently structured or elaborately tailored to reflect thorough deliberation and proper analytical assessment of the officers to be promoted by the Board---Slackness in the criteria adopted by the Board, questioned the transparency of the process and therefore weakened the credibility of the selection---Criteria adopted by the Board did not set parameters or standards that could determine as to who was to be rated "outstanding" or "below average."---Key determining factors needed to be spelled out in writing and corresponding weightage allocated from the very start---Discretion devoid of any prefixed evaluation structure resulted in an unguided and unfettered exercise of power which was facially discriminatory and hence bad in law---Constitutional petition was allowed, selection process carried out by Central Selection Board was declared unconstitutional and illegal and was set aside and the Central Selection Board was directed to formulate a well thought out objective criteria in accordance with the Revised Promotion Policy and consider the cases of the civil servants afresh.

(e) Constitution of Pakistan---

----Art. 10A---Right to fair trial---Scope---Disclosure of material to be used against a person---Scope---Where prejudicial allegations were to be made against a person, he must normally be given particulars of them before the hearing so that he could prepare his answers---Such a person must also be enabled to controvert, correct or comment on other evidence, or information that might be relevant to the decision and influential material on which the decision maker intended to rely---Where relevant evidential material was not disclosed at all to a party which was potentially prejudiced by it, there was prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing.

(1962) 2 WLR 1153 (PC); PLD 1989 SC 335; DeSmith's Judicial Review, 6th Edition pp.389-391; (1970) 2 QB 417; University of Dacca v. Zakir Ahmed PLD 1965 SC 90 and Natwar Singh v. Director of Enforcement and another (2010) 13 Supreme Court Cases 255 ref.

(f) Civil service---

----Selection Board (public authority)---Selection of officers---Procedure adopted offending natural justice---Effect---Decision affecting legal rights of an individual which was arrived at by a procedure which offended against the principles of natural justice was outside the jurisdiction of the decision-making authority.

(1980) AC 718 rel.

(g) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man, etc.---"Dignity of man"---Definition and scope­---Dignity of man was that valued and serene condition in a person's social and individual life which was violated when he was, publicly or privately, subjected by another to offensive and degrading treatment, or when he was exposed to ill-will ridicule disesteem or contempt---Dignity in humans involved the earning or the expectation of personal respect or of esteem and it was something that was inherently a person's God-given inalienable right that deserved to be protected and promoted by the Government and the community---Human dignity was in itself enshrined as the corner stone of society from the very beginning of civilization and was the foundation, the cause and end of all social institutions, therefore, all social institutions, governments, states, laws, human rights and respect for persons originated from the concept of dignity of man or his personhood---Any attempt to undermine the dignity of a human being would also undermine the very foundation and support upon which an orderly society was structured.

University of Pretoria v. Tommie Meyer Films (Edms) Bpk 1979 1 SA 441(A). and JEAN FREDERIC PONOO v. ATTORNEY-GENERAL [2010] SCCC 4 rel.

(h) Constitution of Pakistan---

----Art. 14---Inviolability of dignity of man, etc.---Scope---Value of human dignity was not only concerned with an individual's sense of self-worth, but also constituted an affirmation of the worth of human beings in the society and included the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements---Value of human dignity, therefore, valued both the personal sense of self-worth as well as the public's estimation of the worth or value of an individual.

Khumalo v. Holomisa 2002 (5) SA 401 rel.

(i) Civil service---

----Selection Board (public authority)----Members of Selection Board (public officials)---Selection of officers---Criteria---Discretion of public authority and public officials---Nature and scope---Discretion vested in a public authority was a sacred trust exercised by the public officers as trustees---Public officials did not act for their own sake but rather for the sake of the public interest---Role of the public official in a democracy, like the role of the state itself, was to serve the interest of the public and its members---Exercise of discretion was not a casual affair driven by personal likes or dislikes---Structuring of discretion meant that the authority must first apply its mind to tailor an intelligent objective criteria that was best suited for the selection of the officers under consideration and then begin the process of selection, which must be based on relevant considerations required for selecting the best officer for the job.

Imran Hussain's case PLD 2010 Lah. 546; The Judge in a Democracy - Aharon Barack, p.220; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti, 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 ref.

(j) Discretion---

----Public authority---Discretion of public authority and public officials---Nature and scope.

Imran Hussain's case PLD 2010 Lah. 546; The Judge in a Democracy - Aharon Barack, p.220; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti, 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 ref.

Ali Akbar Qureshi for Petitioners.

Ms. Shaista Qaisar, Deputy Attorney General for Pakistan.

Hafiz Ahsan Ahmad Khokhar for Respondents.

Hafiz Tariq Nasim for Private Respondents.

Muhammad Awais Kundi, Joint Secretary, Establishment Division.

Shamas-ud-Din Baloch, Section Officer, Establishment Division, Islamabad.

Bilal Ahmad, Assistant Ministry of Railways.

M. Nadeem Ahmed Sohail and Nadir Hussain Shah Gilani Civil Judges/Research Officers, Lahore High Court Research Centre for Research Assistant.

Date of hearing: 17th February, 2012.

2012 P L C (C.S.) 1101

[Lahore High Court]

Before Mamoon Rashid Sheikh, J

AZKAR AHMAD

Versus

SECRETARY, MINISTRY OF INFORMATION AND TECHNOLOGY (IT AND TELECOM DIVISION), ISLAMABAD and 2 others

Writ Petition No.4842 of 2010, decided on 6th December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Implementation of judgment of Service Tribunal---Authorities partially implemented decision of reinstating the petitioner, but his salary/back benefits, were not released, despite he remained working after his reinstatement---Contention of counsel for the authorities was that petition had been filed before the Supreme Court against the judgment of Service Tribunal---Said petition had not come up for hearing nor any stay order had been granted to the authorities---Mere filing of petition by authorities before the Supreme Court against the decision of Service Tribunal would not automatically suspend the operation of judgment of Service Tribunal---High Court directed that pending final adjudication before Supreme Court, petitioner be paid his salary/emoluments, subject to final decision given by Supreme Court in the matter.

Executive Council, Allama lqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; C.P.L.As. Nos.347-K and 348-K of 2002, Trustees of the Port of Karachi v. Lt. Cdr. (Retd.) Abdul Aziz Narejo and others; Civil Petition No. 753 of 2003, OPF and another v. Mazher Arif and another; C.P.L.A. No.1915 of 2002, Federation of Pakistan and another v. Gohar Riaz Civil Petition No.1603 of 2002, Chairman, WAPDA v. Salahuddin and another; C.P.L.A. No.272 of 2003, WAPDA through its Chairman v. Muhammad Qasim Jan and another; Civil Petition No.1405 of 2003 Pakistan State Oil Co. Limited and others v. Raja Ali Gul Mangi and another; Fazal Elahi v. Pakistan Telecommunication Company Ltd. and another 2004 PLC (C.S.) 655; Muhammad Siddique Detho v. State Life Insurance Corporation and others 2005 PLC (C.S.) 946; Muhammad Azeem v. F.D.A. and another 2006 PLC (C.S.) 95; Khan M. Mutiur Rahman and others v. Government of Pakistan through Secretary Ministry of Finance (Revenue Division) and others 2006 PLC (C.S.) 564; Muhammad Arshad Khan v. Director-General Agriculture (Water Management) Punjab, Lahore and 2 others 2010 PLC (C.S.) 71; Hafiz Tariq Saeed, Ex-DE PTCL Gujranwala v. Federation through Secretary (IT and Telecom Division), Ministry of Information Technology, Islamabad and another 2010 PLC (C.S.) 997 and Muhammad Arif v. Government of Punjab and others 2007 PLC (C.S.) 428 ref.

Ghulam Farid Chaudhary for Petitioner.

Shabbir Mahmood Malik, Standing Counsel for Pakistan.

Abid Hassan for Respondent No.2.

Talib Baloch, Director Finance, PSEB.

2012 P L C (C.S.) 1119

[Lahore High Court]

Before Asad Munir, J

Dr. SIKANDAR ALI

Versus

GOVERNMENT COLLEGE UNIVERSITY, LAHORE through Vice-Chancellor

Writ Petition No.3266 of 2011, decided on 1st March, 2011.

(a) Government College University Lahore Ordinance (XLVIII of 2002)---

----S. 10---Higher Education Commission's Tenure Track System Statutes, C1.2.6---Constitution of Pakistan Art.199---Constitutional petition---­Maintainability---Sabbatical leave---Entitlement---Alternate and efficacious remedy---Petitioner was working as Assistant Professor under Tenure Track System in the University---Grievance of petitioner was that the University did not allow him ex-Pakistan leave to attend a foreign course under scholarship---University authorities contended that petition was not maintainable as remedy of revision under S.10 of Government College, Lahore University Ordinance, 2010, was available to petitioner---Validity---Tenure Track faculty member was entitled under clause 2.6 of Higher Education Commission's Tenure Track System Statutes, to be paid sabbatical leave of one semester or four months for every three years of his service---Sabbatical leave was another name for study leave, which Universities all over the world allowed and encouraged to promote professional growth of their faculty members and also achieved objective of acceleration of quantum of research and development at faculty---Petitioner had been permanent member of the faculty since year, 2002 and he had been on Tenure Track since year, 2005---Petitioner in terms of clause 2.6 of Higher Education Commission's Tenure Track System Statutes was entitled to grant of sabbatical leave for the period he had remained in service which appeared to be nearly nine years long---Petitioner had availed remedy of revision under S.10 of Government College, Lahore University Ordinance, 2010, but a period of over one month had passed but no decision had been taken one way or the other---Remedy although availed had not been efficacious enough as the same would also become infructuous considering that the research fellowship offered to petitioner was to lapse if not availed by 15-3-2011---Availability of alternate remedy did not bar Constitutional jurisdiction of High Court in every case---High Court declared that order passed by University was arbitrary, unlawful and was passed without lawful authority resultantly the same was set aside---High Court directed the University to grant permission/No Objection Certificate and ex-Pakistan leave to the petitioner---Petition was allowed in circumstances.

Yahya Gulzar v. Province of Punjab 2001 CLC 9 distinguished.

Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan, Works Division and 2 others PLD 1972 SC 279 and Mst. Hussain Bibi v. Haji Muhammad Din and 3 others 1976 SCMR 395 rel.

(b) Discretion---

---Exercise of discretion by Authority---Principle---When an authority has been conferred discretion, it must be exercised fairly according to rational and intelligible reasons---Any action or decision which does not meet such thresh-hold requirements has to be considered arbitrary.

Amanullah Khan and others v. Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others PLD 1990 SC 1092 and Abdul Wahab and another v. Secretary Government of Balochistan and another 2009 SCMR 1354 ref.

(c) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Alternate remedy---Availability---Effect---Availability of alternate remedy does not bar constitutional jurisdiction of High Court in every case.

Ch. Abdus Sattar for Petitioner.

Ali Masood Riaz for Respondent.

2012 P L C (C.S.) 1149

[Lahore High Court]

Before Muhammad Farrukh Irfan Khan, J

MUMTAZ-UD-DIN SHEIKH and another

Versus

EXECUTIVE DIRECTOR, PAKISTAN MEDICAL RESEARCH COUNCIL, ISLAMABAD and another

Writ Petition No.5054 of 2012, decided on 2nd March, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Upgradation of post---Notification No.F.6 (4) R.I/2006, dated 29-6-2007, was issued by Finance Division of Federal Government, upgrading posts of Clerical/Auditors---Petitioners were not holding the posts mentioned in the notification but sought their upgrading from Basic Pay Scale-11 to 14---Validity---Upgradation as per the notification was meant for Clerical/Auditors posts and subsequent letter also accorded benefit of upgradation to Statistical Assistants---Petitioners were Field Health Assistants who were classified differently due to performance of different duties and educational qualification from Assistants/Head Clerks and Statistical Assistants, as such were different and distinguishable, consequently they could not claim upgradation of their posts on the basis of notification in question---Petition was dismissed in circumstances.

I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041 ref.

Zafar Iqbal Klasson for Petitioner.

2012 P L C (C.S.) 1166

[Lahore High Court]

Before Ch. Muhammad Tariq, J

Raja MUHAMMAD JAVAID

Versus

GOVERNMENT OF PUNJAB and others

Writ Petition No.2674 of 2010, heard on 10th March, 2011.

Punjab Forestary and Wildlife (Executive Service) Rules, 1978---

----Punjab Civil Servants Act (VIII of 1974), Ss.8 & 21---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Promotion---Amendment in notification---Petitioner had been serving as Deputy Game Warden/Deputy Director Wildlife (BPS-18) since 1983 and during his service, he also got Postgraduate Diploma in Wildlife Management from abroad in the year 1990---Criteria for promotion to the post of Director Wildlife and Parks Punjab in BS-19 was set as "by selection on merits amongst the Deputy Directors, Wildlife with 12 years service in Grade-17 or seven years service in Grade-18" under Punjab Forestry and Wildlife (Executive Service Rules) 1978---Petitioner was fully qualified for promotion, but on account of non-availability of post, he could not be promoted---Later on in the year 2007, amendments were made in the said Rules, whereby criteria for promotion to the post of Director Wildlife (BS-19) had been prescribed as "by selection on merits amongst the Deputy Directors, Wildlife with 12 years service in the department in Grade-17 or seven years service in Grade-18, having M.Sc. Zoology or equivalent qualification"---Petitioner had challenged said notification---Petitioner had not asked for his promotion among other employees but petitioner had challenged the vires of amended notification/Rules issued in 2007---Objection raised by with regard to maintainability of Constitutional petition was misconceived---Petitioner had about 28 years service/experience on his credit and impugned amendment in the Rules would adversely affect the rights of the petitioner and his other colleagues whose promotion would be denied in the light of newly amended Rules just to favour less experienced persons, there was no substitution of experience---Newly amended Rules prescribing qualification of M.Sc. Zoology or equivalent qualification would create sense of insecurity among those who had dedicated their lives in the department---Impugned amended notification/Rules was violative of fundamental rights guaranteed by Constitution--- Amended notification/Rules, was struck down and earlier notification, was restored and matter of promotion of the petitioner and other employees would be considered and decided in the light of earlier notification/Rules.

Sh. Muhammad Suleman for Petitioner.

Rashid Hafeez, Asstt. A.-G., Punjab for Respondent.

Date of hearing: 10th March, 2011.

2012 P L C (C.S.) 1174

[Lahore High Court]

Before Syed Akhlaq Ahmad, J

SOSAN MUNAWAR

Versus

DISTRICT COORDINATION OFFICER, GUJRANWALA and 2 others

Writ Petition No.1035 of 2011, decided on 19th January, 2011.

Punjab Civil Servants Act (VIII of 1974)---

----S. 9---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Transfer---Petitioner had challenged order of her transfer from one place of working to another---Competent Authority, in view of the "Rationalization Policy of P.S.T's. (Phase-II) of the Government" and consequent upon the recommendation of the District Rationalization Committee, approved the transfer of the petitioner along with 241 other teachers with shifting of their posts in the schools---Posting and transfer, was a necessary feature of service and could best be judged by the authority under whom the person was serving---Posting and transfer was outside the scope of constitutional jurisdiction of the High Court as enshrined in Art.212 of the Constitution---Constitutional petition being not maintainable, was dismissed, in circumstances.

Mst. Hussan Aara v. Government of the Punjab and others 2004 PLC (C.S.) 106; Begum Asmat Azhar v. Punjab Government through Secretary Education and another PLD 1987 Lah. 256; Dr. Younis Asad Shaikh v. Province of Sindh through Secretary Health Department, Government of Sindh 2009 PLC (C.S.) 735 and Secretary to Government of Punjab Health Department Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61 ref.

Kamal Mustafa for Petitioner.

2012 P L C (C.S.) 1190

[Lahore High Court]

Before Ch. Muhammad Younis, J

SHER DIL KAMRAN

Versus

BAHAUDDIN ZAKARIYA UNIVERSITY, MULTAN through Vice-Chancellor and 8 others

Writ Petition No.13962 of 2010, decided on 8th February, 2012.

Constitution of Pakistan---

----Art. 199---Baha-ud-Din Zakariya University Act (III of 1975), S.11-A---Constitutional petition---Alternate remedy---Contract employee/regularization of service---Petitioner, was a lecturer at the respondent University and assailed the decision of the Selection Board whereby he was not selected for an advertised post and further contended that his employment was entitled to be regularized---Validity---Petitioner had raised questions which related to factual controversy and could not be gone into in exercise of the Constitutional Jurisdiction of High Court---High Court, in its constitutional jurisdiction, was not supposed to substitute its findings for that of the University's Selection Board---Nothing was available on record that could establish any discriminatory treatment towards the petitioner or any favoritism shown to the lecturers who were selected---Allegations of the petitioner were based on surmises and conjectures which were not supported by any document on record---Petitioner was estopped by his own conduct when he acknowledged the competence of the Selection Board and appeared for an interview---Petitioner was admittedly a contract employee and had no vested right to be regularized---Petitioner, if aggrieved of the decision of the Selection Board, could have availed the alternate remedy available to him under S.11-A of the Baha-ud-Din Zakariya University Act, 1975---Constitutional petition was dismissed.

1999 SCMR 2381; 1992 SCMR 1093 and PLD 2006 SC 602 ref.

2005 PLC (C.S.) 599 rel.

M. Hassan Bilal for Petitioner.

Malik Muhammad Tariq Rajwana Advocate/Legal Advisor for Respondents Nos.1 to 5.

Malik Muhammad Naeem lqbal for Respondent No.7.

Sardar Usman Sharif Khosa for Respondent No. 8.

Muhammad lshaq, Legal Assistant, BZU.

Sardar Zafar Ahmad Lund for Respondent.

2012 P L C (C.S.) 1199

[Lahore High Court]

Before Nasir Saeed Sheikh and Shahid Hameed Dar, JJ

M. ASLAM JANJUA

Versus

CHIEF ENGINEER and others

Intra-Court Appeal No.8 of 2009, heard on 8th March, 2011.

Civil service---

----Contract employee---Claim of family members of deceased employee for grant of financial assistance---Denial of claim---Employee who originally was employed on contract basis in BPS-12, his services later on were extended---Selection of said employee was made through prescribed procedure on the basis of interview---Said employee died at the age of 30 years---Appellant who was father of the deceased employee requested for financial assistance of Rs.400,000 which was admissible to other such government employees who died during their service tenure, by virtue of Financial Department Circular dated 10-11-2004---Request of appellant was declined on the ground that financial assistance, was admissible to civil servants only and that contract employees were not entitled to any such financial assistance---Validity---Deceased son of appellant was selected for appointment after test and interview conducted by a duly constituted Selection Committee---No basic difference existed between an ordinary civil servant and a contract employee in the government service---Only difference between the terms and conditions of both of them was that a contract employee worked during a specified contract period---Authorities had themselves admitted extending the period of the employment of the deceased employee---Financial assistance provided to the family of civil servants who died during their period of employment was an ex-gratia grant for providing financial assistance to the bereaved family---Case of the appellant was sub judice ever since year 2008; and during the pendency of proceedings, a new notification had been issued by the Government in 2009 whereby said grant of financial assistance had been extended to the family of the contract employees as well who died while in service---High Court directed that financial assistance be provided to the family of deceased employee.

Zamir Ahmad Malik for Appellant.

Raja Muhammad Hameed, A.A.-G. for Respondents.

Date of hearing: 8th March, 2011.

2012 P L C (C.S.) 1203

[Lahore High Court]

Before Tariq Javaid, J

Dr. SITARA ABDUL REHMAN

Versus

GOVERNMENT OF PUNJAB through Secretary Health, Lahore and 3 others

Writ Petition No.18082 of 2008, decided on 23rd December, 2010.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Services of employee were terminated without charge-sheeting him and without issuing him show-cause notice, in a summary manner---Contention of Law Officer of the department was that petitioner was a contract employee and under the terms of contract for her employment, her services could lawfully be terminated on one month's notice or on payment of one month's salary in lieu thereof---Contention of Law Officer was repelled, because contract employee also had right to be dealt with in accordance with law---Even if an employee was serving the Government on contract, he could not be terminated with complete disregard to the Rules and protection provided under the law to the government servant---Services having been terminated on charge of misconduct and poor performance, employee had a right to be dealt with in accordance with law and proper inquiry ought to have been conducted---Such having not been done in case of the employee, impugned order was set aside and employee was reinstated in service.

Aurangzeb Mirza for Petitioner.

Ejaz Farrukh, Law Officer along with Mirza Ejaz Hussain, Admn. Officer.

2012 P L C (C.S.) 1208

[Lahore High Court]

Before Manzoor Ahmad Malik, Chairman Ijaz-ul-Ahsan, Member-I and Ch. Muhammad Tariq, Member-II

Malik AZHAR-UL-HAQ

Versus

REGISTRAR, LAHORE HIGH COURT, LAHORE

Service Appeal No.13 of 2009, heard on 26th November, 2010.

(a) Punjab Subordinate Judiciary Service Tribunal Act (XII of 1991)---

----S. 5---Adverse remarks, expunction of---Remarks recorded in Annual Confidential Report of the appellant for relevant year to the effect that "some stinking news about his integrity had started pouring in, he should be careful (Advisory)", had been impugned by the appellant in his appeal being as adversary remarks---Counsel for authorities had opposed appeal on the grounds that impugned remarks being advisory in nature, could not be expunged---Counsel for authorities could not refer to any material to fortify alleged remarks which in his opinion were advisory---Impugned remarks could not be treated as advisory as claimed by the authorities---No other adverse remarks had ever been recorded against the appellant in his career---In previous Annual Confidential Report, appellant was shown as an asset for the Judiciary---Impugned remarks were not advisory, but in fact were adverse remarks mentioned against appellant, without any basis or substance, which was not warranted under the law---Allowing appeal, impugned remarks were expunged, in circumstances.

Noor Elahi v. Director of Civilian Personnel Rear Air Headquarters, Peshawar and 2 others 1997 SCMR 1749; Abul A'la Maudoodi v. Government of West Pakistan PLD 1964 SCMR 673; Ejaz Muhammad Khan v. Province of Punjab 1983 PLC (C.S.) 303; Government of the Punjab and another v. Ehsanul Haq Sethi PLD 1986 SC 684; Engineer Jameel Ahmed Malik v. Pakistan Ordnance Factories Board, Wah Cantt. through Chairman and others 2004 SCMR 164; Lahore High Court, Lahore through Registrar v. Muhammad Jahangir Khan Goraya 1999 SCMR 2117; Shaukat Javed Farooq, Under Secretary Civil Secretariat, Lahore v. District and Sessions Judge, Lahore and others 1999 SCMR 2141 and Ch. Shabbir Hussain and others v. Registrar, Lahore High Court, Lahore and others PLD 2004 SC 191 ref.

(b) Words and phrases---

----Word 'stinking', defined and explained.

Hafiz Tariq Nasim for Appellant.

Mian Manzoor Hussain for Respondent.

Date of hearing: 26th November, 2010.

2012 P L C (C.S.) 1223

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD ATHER

Versus

MINISTRY OF DEFENCE, GOVERNMENT OF PAKISTAN, through Secretary Defence, Rawalpindi and 6 others

Writ Petition No.7537 of 2009, heard on 28th April, 2011.

(a) Constitution of Pakistan---

----Art. 199(3)---Constitutional petition---Maintainability---Bar of jurisdiction---Scope---If act of authority is mala fide, without jurisdiction or coram non judice, then Constitutional petition is maintainable.

Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 rel.

(b) Constitution of Pakistan---

----Art. 199---Limitation Act (IX of 1908), S.5---Constitutional petition---"Laches" and "limitation"---Distinguished---Delay in filing of legal proceedings within the period specified under provisions of Limitation Act, 1908, and undue time consumed by party in filing Constitutional petition in which no statutory period was prescribed under law have different parameters---Delay in the case under Limitation Act, 1908, has to be explained for each and every day with evidence but in case of laches in filing of Constitutional petition lapse of time on question of laches has to be examined on equitable principles---Exercise of Constitutional jurisdiction is always discretionary with court and relief granted under Constitutional jurisdiction is always an equitable relief.

(c) Constitution of Pakistan---

----Art. 199---Constitutional petition---Territorial jurisdiction---Islamabad High Court and Lahore High Court have concurrent jurisdiction for redressal of grievance even if Federation is party.

LPG Association of Pakistan through Chairman v. Federation of Pakistan through Secretary, Ministry of Petroleum and Natural Resources Islamabad and 8 others 2009 CLD 1498 rel.

(d) Constitution of Pakistan---

----Arts.25 & 199(3)---Constitutional petition---Member of Armed Forces---Bar of jurisdiction---Mala fide---Proof---Petitioner was serving as Major in the Pakistan Army and wanted to get voluntary/premature retirement but he was conveyed by authorities that his request had been regretted and he should resign without any terminal benefits, therefore, he resigned---Validity---Authorities never considered application of petitioner for voluntary/premature retirement and forced him to resign from the Commission---Such act of authorities fell under the definition of mala fide, as petitioner was not allowed to explain his case nor he was made known the reasons why his application was not proceedable for voluntary / premature retirement---Petitioner like other employees was entitled to be treated under the policy applicable---Functionaries of any organization or Ministry could not be allowed discrimination on their whims, sweet will or in their own manner rather they were bound to act fairly, evenly and justly---As petitioner was condemned unheard and his application was not considered rather he was forced to resign, such was sufficient ground for setting aside the order passed by authorities being violative of principles of natural justice, which was in violation of fundamental right---Petitioner had served Armed Forces for 14-1/2 years and under the policy he was entitled for benefit to the extent of 75% and as such he could not be denied of his right to survive---High Court in exercise of Constitutional jurisdiction set aside order of accepting resignation of petitioner and converted the same into a voluntary/premature retirement---Petition was allowed accordingly.

Mrs. Shahida Zahir Abbasi and 4 others v. President of Pakistan and others PLD 1996 SC 632 fol.

Ex.Lt.Col. Anwar Aziz (PA-7122) v. Federation of Pakistan through Secretary Ministry of Defence Rawalpindi and 2 others PLD 2001 SC 549; Federation of Pakistan and others v. Raja Muhammad Ishaque Qamar and another PLD 2007 SC 498; Instisar Ali v. Federation of Pakistan and others 2008 PLC (C.S.) 975; Mushtaq Ahmed and others v. Secretary, Ministry of Defence through Chief of Air and Army Staff and others PLD 2007 SC 405; Sepoy Mukhtar Ahmed and others v. Federation of Pakistan through Secretary, Ministry of Defence and another 2008 PCr.LJ 22; Rehmat Ali Johar v. Additional Chief Engineer and others PLD 2008 SC 301 and 2005 SCMR 126 ref.

(e) Laches---

----Limitation---Distinction.

Ch. Shakir Ali for Petitioner.

Kh. Noor Mustafa, D.A.-G. for Respondents.

Date of hearing: 28th April, 2011.

2012 P L C (C.S.) 1280

[Lahore High Court]

Before Ijaz Ahmad, J

SAJJAD AHMAD and another

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, RAWALPINDI and another

Writ Petitions Nos.226, 857 and 491 of 2009, decided on 24th January, 2012.

Punjab Boards of Intermediate and Secondary Education Act (XIII of 1976)---

----Ss. 2(F)(g), 11 & 12---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Appointment---Petitioners were Lower Division Clerks in the Board---When the department approved the computerization of the record of the Board, according to the Summary sent to the Chief Minister, the Data Entry Operators were to be raised from within the Board---Board invited applications from Junior and Senior Clerks with typing speed of 40 W.P.M.---Petitioners who were equipped with all the qualifications, applied for the posts, and were appointed (after test and interview) as "Computer Cell Operators" in their own pay and scales on temporary basis---Employees started performing their duties and were being paid salary in BS-7---Subsequently, when vide notification, sanction for creation of posts of BS-11 was granted, to be filled in from within the office from Junior and Senior Clerks, who were equipped with the required qualification, said employees claimed their entitlement to salary in BS-11---Such claim of the employees was rejected by the authorities, on the grounds that as the employees were appointed in their own pay and scale on temporary basis they could not claim the salary in BS-11; and that Regulation relating to the Conditions of Service of the said employees being non-statutory in nature, the relationship between the Board and the employees was that of master and servant, and their petition was not maintainable---Validity---Even if the Rules and Regulations framed under any Act created between the parties the relationship of master and servant, same would not confer on the master unfettered powers to act in violation of the principles of natural justice and well settled norms of justice---Present case concerned little with the terms and conditions of the service of the employees ---Question of maintainability of constitutional petition of the employees had to be decided on altogether different touchstone---Employment of the petitioners, could not, after the lapse of 12 years be termed "temporary", but would be deemed to have attained the permanence and regularization---Employees who being the citizens of Pakistan, had been guaranteed the protection of law, claimed the inalienable right to be treated in accordance with law and their equality before law, BS-11 could not be kept at bay from them even if there existed the relationship of master and servant between the Board and the employees---Authorities, were directed to treat the employees to be serving in BS-11 w.e.f. from date of issuance of notification---Order accordingly.

Zia Ghafoor Paracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others 2002 PLC (C.S.) 1571 ref.

Zia Ghafoor Paracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others 2002 PLC (C.S.) 1571; Zia Ghafoor Piracha v. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others 2003 PLC (C.S.) 1404; Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another v. M. Tufail Hashmi 2010 SCMR 1484; Mrs. Anisa Rehman v. P.I.A.C. and another 1994 SCMR 2232; Pakistan and others v. Public-at-Large and others PLD 1987 SC/Shariat Appellate Bench 304; Secretary, Revenue Division and others v. Muhammad Saleem 2008 SCMR 948 and Dr. Prof. Syed Qasim Mehdi v. Registrar, University of Karachi and 2 others 2009 PLC (C.S.) 245 rel.

Muhammad Bashir Khan and Abdur Rehman Khan for Petitioners.

Hafiz-ur-Rehman Syed for BI&SC, Rawalpindi.

Shahid Mehmood Abbasi, A.A.-G.

Raza Ahmad Satti, Superintendent, BI&SE, Rawalpindi.

2012 P L C (C.S.) 1293

[Lahore High Court]

Before, Ali Baqar Najafi, J

TAHIR ABBAS and 3 others

Versus

SECRETARY LIVE STOCK, GOVERNMENT OF PUNJAB, LAHORE and 6 others

Writ Petition No.9686 of 2012, heard on 9th May, 2012.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Applicants (petitioners) applied to the District Livestock Officer for different posts in response to an advertisement, whereafter they were offered the posts they had applied for ---Said offers were cancelled unilaterally by the concerned department and the applicants approached the Provincial Ombudsman, who accepted their representation and directed the appointing authority to issue appointment letter to the applicants within 15 days---Said order of Provincial Ombudsman remained unattended and the applicants approached the High Court for a direction to the concerned officers and department to implement the order of the Provincial Ombudsman---Contentions of the department and concerned officers were that an appeal had been filed before the Governor against the decision of the Provincial Ombudsman, which was pending; that only an offer for appointment was made; that a large number of people remained unaware of the advertisement for the post and the department was going to re-advertise the posts, and that the applicants should wait for the decision of the appeal filed before the Governor---Contentions of the applicants were that the concerned department was duty bound to comply with the order of the Provincial Ombudsman and issue appointment order; that filing of appeal before the Governor was no ground for non-compliance of the order of the Provincial Ombudsman and in case the decision of appeal was in favour of the department, it had every right to expel the applicants---Validity---Right had accrued in favour of the applicants when the Provincial Ombudsman issued direction to the concerned department for issuance of appointment letter in favour of the applicants---Department had conceded that offer letter for appointment was issued on merit--- Concerned department and officers were public functionaries and were under a duty to obey the order passed by the office of the Provincial Ombudsman in letter and spirit, unless implementation of the said order was stayed or set-aside by the appellate authority---Contention of the department was that office of Provincial Ombudsman misconstrued the offer letter and the same was not open to the High Court to interfere, as High Court was not court of appeal in the case---Constitutional petition was allowed and concerned department and officers were directed to comply with the order of the Provincial Ombudsman.

Ch. Anees ur Rehman for Petitioner.

Ms. Rabbiya Bajwa, A.A.-G. with Ghulam Mustafa District Officer Livestock..

Date of hearing: 9th May, 2012.

2012 P L C (C.S.) 1304

[Lahore High Court]

Before Rauf Ahmad Sheikh, J

MUHAMMAD RIAZ

Versus

D.G. MILITARY and others

Writ Petition No.2173 of 2011, decided on 24th April, 2012.

Cantonments Act (II of 1924)---

----S. 280(2)(c)---Pakistan Cantonments Service Rules, 1954, Rr.8 & 44---Civil Servants Act (LXXI of 1973), S.2(b)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Laches---Employee of Cantonment Board---Petitioner an employee of Cantonment Board assailed order discharging him from service---Authorities contended that petition was not maintainable and hit by laches---Validity---Petitioner was governed under Pakistan Cantonments Service Rules, 1954, framed in exercise of powers conferred on Federal Government under S.280 (2) (c) of Cantonments Act, 1924---Petitioner was subject to statutory rules and could assail the order through petition under Art.199 of the Constitution, in case any order was passed illegally and against the Rules--- Order passed by authorities was against proviso to Rr.8 and 44 of Pakistan Cantonments Service Rules, 1954---By not issuing final show-cause notice to petitioner along with copy of inquiry report and depriving him of opportunity of being heard, authorities committed violation of principles of natural justice and had also ignored mandatory requirements of the Rules---Petition was not hit by principle of laches as petitioner had been seeking relief from different forums during intervening period---High Court set aside the order passed by authorities against petitioner and matter was remanded for decision afresh---Petition was allowed accordingly.

PLD 1991 SC 102; PLD 2010 SC 1066; 2003 SCMR 1493 and 2005 CLC 1447 ref.

Mirza Anwar-ul-Haq for Petitioner.

Mirza Viqas Rauf for Respondents.

2012 P L C (C.S.) 1335

[Lahore High Court]

Before Rauf Ahmad Sheikh, J

MUHAMMAD FAROOQ

Versus

ENGINEER-IN-CHIEF ENC BRANCH, (GHQ), RAWALPINDI and another

Writ Petition No.2636 of 2010, decided on 30th January, 2012.

(a) Constitution of Pakistan---

----Arts. 199, 25 & 212---Constitutional petition---Maintainability---Civil service---Petitioner sought direction of the High court to the effect that the Authorities consider service rendered by him before his regularization towards his pay and pension---Validity---Government servant, if he remains continuously in service without break, had the right that the same period be counted towards pay, pension and promotion, but not seniority---Contention of the authorities that the Constitutional petition was barred under Art.212 of the Constitution was not correct as the petitioner was not treated equally with another employee who was placed under similar circumstances, and his right to equal treatment under Art.25 of the Constitution stood infringed and, therefore, he could invoke the Constitutional jurisdiction of the High Court---High Court directed the authorities to count the service rendered by the petitioner prior to regularization and benefits thereof be given to him---Constitutional petition was allowed, accordingly.

2005 SCMR 100 and 2002 SCMR 574 rel.

(b) Civil Procedure Code (V of 1908)---

----O. I, R.9---Constitution of Pakistan, Art.199---Constitutional petition---Misjoinder/non-joinder of necessary parties---Effect---Civil service---Petition for misjoinder and non-joinder of parties as provided under O.I, R.9 of the C.P.C. was not bad---Petitioner who otherwise proved that he had been treated with discrimination and had been illegally deprived of benefit which was due to him for his continuous government service should not be non-suited and his petition should not be knocked down for technical reasons.

2003 SCMR 318 ref.

(c) Administration of justice---

----Technicalities should not hamper the course of justice and may not be used to create hurdles in the way of administration of substantial justice. [p. 1338] D

Muhammad Ramzan Khan for Petitioner.

Sardar Maqbool Hussain for Respondents.

2012 P L C (C.S.) 1344

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

Ch. AHSAN AHMAD, JUDGE ACCOUNTABILITY COURT NO.1, LAHORE and 2 others

Versus

GOVERNMENT OF PAKISTAN LAW AND JUSTICE DIVISION, ISLAMABAD through Secretary and another

Writ Petition No.11356 of 2009, decided on 30th May, 2012.

National Accountability Ordinance (XVIII of 1999)---

----S. 5-A---National Judicial Policy, Chapter A---Constitution of Pakistan, Art. 199---Constitutional petition---Judge of Accountability Court---Tenure---Pre­mature termination---Independence of judiciary---Petitioners were District and Sessions Judges who were appointed as Judges of Accountability Courts for a period of three years on contract---After issuance of National Judicial Policy, contract of petitioners were terminated pre-maturely on their retirement---Plea raised by petitioners was that National Judicial Policy referred to the members of superior judiciary only---Validity---Authorities in compliance of National Judicial Policy issued termination letter in question---Petitioners were not retired Judges of Superior Judiciary and were retired Judges of District Judiciary but authorities wrongly treating petitioners retired Judges of Superior Judiciary terminated petitioners contract of service prematurely---Petitioners were awarded three years contract under S.5-A(3) of National Accountability Ordinance, 1999, commencing from their initial appointment, when they were members of District Judiciary and after their retirement from District Judiciary---Petitioners were not retired members of Superior Judiciary and as such National Judicial Policy was not applicable to them---High Court in exercise of Constitutional jurisdiction declared the notification illegal and without lawful authority---Petition was allowed accordingly.

Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607 rel.

Ch. Muhammad Abdul Qayyum for Petitioner.

M. Nasim Kashmiri, Dy. A.-G. for Pakistan.

Date of hearing: 16th May, 2012.

2012 P L C (C.S.) 1366

[Lahore High Court]

Before Shahid Waheed, J

Syed KHALID MEHMOOD BUKHARI

Versus

G.M. (HRO) PTCL and others

Writ Petition No.18564 of 2012, decided on 17th July, 2012.

Constitution of Pakistan---

----Art. 199---Pakistan Telecommunication Company Limited Service Regulations, 1996---Constitutional petition---Show-cause notice---Quashing of proceedings---Petitioner was aggrieved of show cause notice issued to him by authorities and sought quashing of the same---Validity---Interference in interlocutory orders such as charge-sheet/ show-cause notice and putting an end to them at its inception, unless same was shown to be without jurisdiction, would amount to stifling of disciplinary proceedings---High Court declined to interfere on petition filed by delinquent employee challenging and quashing show cause notice---Appropriate course for petitioner to adopt was to file his reply to show cause notice and invite decision of disciplinary authority thereon---Prior to such stage, any petition for quashing of charge sheet or show cause notice was pre-mature---Petition was dismissed in circumstances.

Mst. Shagufta Begum v. Income Tax Officer Circle XI, Zone-B, Lahore PLD 1989 SC 360; Muhammad Yousaf Khan v. Habib Bank Ltd. through President and others 2004 SCMR149; Allah Bukhsh v. D.I.-G. Police 2003 UC 60; Abdul Wahab Khan v. Government of the Punjab and 3 others PLD 1989 SC 508 and Muhammad Javed v. Executive District Officer (Education), Sialkot and 2 others PLJ 2002 Lah. 1393 and Khalid Mehmood Ch. and others v. Government of the Punjab 2002 SCMR 805 rel.

Ms. Rizwana Anjum Mufti for Petitioner.

2012 P L C (C.S.) 1370

[Lahore High Court]

Before Umer Ata Bandial and Ayesha A. Malik, JJ

ADDITIONAL ACCOUNTANT GENERAL PAKISTAN REVENUE, SUB OFFICE, LAHORE

Versus

M.M. MALIK and others

Intra-Court Appeal No.508 of 2011 in Writ Petition No.3463 of 2011, heard on 8th May, 2012.

(a) Civil service---

----Government of Pakistan, Finance Division Office Memorandum dated 4-9-2001, para. 16(f)---Pension---Part of pension surrendered at time of retirement---Periodic increase in pension---Whether such increase applied to surrendered portion of pension---Locus poenitentiae, doctrine of---Applicability---Accrued and vested right---Scope---Pensioner (respondent) had surrendered portion of his pension at time of retirement in the year 1994, owing to an offer by Federal Government---Federal Government withheld increase in pension given by it on surrendered portion of pension, until restoration of said portion---Single Judge of High Court found that Federal Government was in error in withholding the increase on surrendered portion---Federal Government (appellant) through Deputy Attorney General contended that paragraph 16(f) of Office Memorandum dated 4-9-2001, permitted the pensioner, to receive periodic increases on un-commuted portion of pension but denied such increase on the surrendered portion of the pension, and that paragraph 16(f) of the Office Memorandum applied to both existing pensioners and serving employees---Validity---Pensioner at the time of his retirement in 1994, availed a lawful offer by the Federal Government to commute 50% of his pension on specified terms including, inter alia, the accrual of periodic increases in pension to both recurring and commuted portions of his pension---Such assurance was to remain in effect throughout the commutation period---Pensioner had taken a decisive step by acting on the commutation terms in 1994 and thereby acquired a vested right which could not be denied or destroyed subsequently by the Federal Government, as a legal bar came into existence under the doctrine of locus poenitentiae---Revocation of terms of commutation by Office Memorandum dated 4-9-2001 operated prospectively, and it could not impair the time bound vested or accrued rights of pensioner that were created in 1994---Curtailment of pensioner's right to receive periodic increases on surrendered portion of his pension was illegal because Office Memorandum in question lacked express deprivation of right of an existing pensioner to the periodic increases given by Federal Government, and because executive prerogative of Federal Government could not clothe it with a power it did not possess, namely to deprive the pensioner of an accrued and vested right enjoyed since the year 1994---Such an accrued right could not be taken away by an executive action without compensation, except through legislation---Paragraph 16(f) of Office Memorandum in question, revealed that the expression "net pension" used therein had not been assigned any meaning in the Memorandum itself or anywhere else in the official documentation of Federal Government, which left it to the discretion of the executive functionaries to pick and choose what fell within the ambit of the expression---Such discretion did not authorize the executive to adopt a meaning which curtailed accrued and vested rights of existing pensioners without compensation---Intra-court appeal was dismissed, in circumstances.

Akram-ul-Haq Alvi v. Joint Secretary (R-II), Government of Pakistan, Finance Division Islamabad and others 2012 SCMR 106; Secretary Finance, Government of Pakistan v. Roshan Ali Mangi Civil Appeals Nos.1305 to 1327 of 2003; Federation of Pakistan v. Ghulam Mustafa and others Civil Petitions Nos.549 to 559 of 2012 and I.A. Sherwani v. Government of Pakistan 1991 SCMR 1041 ref.

Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 SCMR 1420; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652 at 1696 and Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others v. Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404 rel.

(b) Vested right---

----Executive action creating a vested right---Revocation of such a right---Scope-- Where a lawful dispensation was issued by a competent authority that was duly acted upon by its beneficiary created valuable rights---Such vested rights although created under an executive instrument could not be revoked without compensation except through legislation.

Muhammad Nawaz v. Federation of Pakistan and 61 others 1992 SCMR 1420; Messrs Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652 at 1696 and Messrs M.Y. Electronics Industries (Pvt.) Ltd. through Manager and others Government of Pakistan through Secretary Finance, Islamabad and others 1998 SCMR 1404 rel.

Naseem Kashmiri, Dy. A.-G. and Muhammad Ashraf Khan, Dy. A.-G. for Pakistan for Appellant.

Syed Abrar Hussain Naqvi, Khawar Ikram Bhatti, Addl. A.-G. and Mian Masood Ahmad for Respondents.

Date of hearing: 8th May, 2012.

2012 P L C (C.S.) 1402

[Lahore High Court]

Before Rauf Ahmad Sheikh and Shahid Hameed Dar, JJ

PROVINCE OF PUNJAB and others

versus

AFTAB AHMAD and others

I.C.A. No.19 of 2012, heard on 27th March, 2012.

(a) Law Reforms Ordinance (XII of 1972)---

----S. 3---Limitation Act (IX of 1908), S.5 & Art.151---Intra-court appeal---Limitation---Under Art.151 of the Limitation Act, 1908, a period of 20 days was prescribed for filing of appeal against the decree or order of High Court passed in exercise of its original jurisdiction---Said limitation period of 20 days would start from the date of the decree or the order appealed from---Though no certified copy of the order was required for filing of the intra-court appeal, but, in the present case, even if the period of four days was excluded, appeal filed after about 38 days from date of passing decree, was barred by time---No application for condonation of delay was moved by the appellant-government---Government department like an ordinary litigant was also required to be vigilant and seek remedy in accordance with law and within the period prescribed by it---Intra-court appeal which was barred by time and merits, was dismissed on that ground.

(b) Interpretation of statutes---

----Subordinate legislation could not take retrospective effect.

(c) Law Reforms Ordinance (XII of 1972)---

----S. 3---Intra-court appeal---Contract employee---Regularization of service---Contention of the appellant/department was that at the time of recruitment of the respondents/employees the required qualification for the post concerned was Matriculation under the Punjab Local Government and Rural Development Department Service Rules, 1981, but subsequently through an amendment in the said Rules, qualification of Matriculation had been altered to F.A. 2nd Division; as the employees did not possess said qualification, they were not considered for regularization, whereas those who possessed the required qualification, were duly regularized---Contention was repelled as the employees at the time of their initial appointment were duly qualified for the post and amendment subsequently made would not affect their rights adversely---Contention that the contract employees had no right for regularization, was also without force, because all such employees had been given the right of regularization; as other employees placed under similar condition had been extended that benefit by the Government through notification.

Bank of Punjab v. Punjab Labour Appellate Tribunal, Lahore and 2 others PLD 2010 Lah. 666; Mst. Bhakhan and others v. Mst. Ghulam Janat and others 2005 SCMR 1662 and Collector Land Acquisition, Abbottabad and others v. Fazal-ur-Rehman and others 2009 SCMR 767 rel.

Rashid Hafeez, A.A.-G. for Appellants.

Tanveer Iqbal Khan for Respondents.

Date of hearing: 27th March, 2012.

2012 P L C (C.S.) 1405

[Lahore High Court]

Before Muhammad Qasim Khan and Syed Iftikhar Hussain Shah, JJ

Mst. ITRAT NAZIR

versus

EXECUTIVE DISTRICT OFFICER, EDUCATION DISTRICT BAHAWALPUR and 4 others

I.C.A. No.26 of 2012/BWP in Writ Petition No.815 of 2012/BWP, decided on 12th April, 2012.

Constitution of Pakistan---

----Art. 199---Law Reforms Ordinance (XII of 1972), S.3---Constitutional petition--- Civil service--- Appellant had filed Constitutional petition and sought direction to the effect that appointment letter be issued in her favour against the post of Secondary School Educator which was denied to her by the Authorities on the ground that her "no objection certificate" (NOC) was not signed by the competent authority of the institution where she was already serving---Constitutional petition of the appellant was dismissed on the ground that she had already availed an adequate remedy by making an application to the District Coordination Officer---Validity---Controversy in the present case was that application of the appellant was not in accordance with the advertisement and it was not accompanied with a "no objection certificate" ( NOC ) from the appointing authority of the Institution where she was already serving (Government Higher Secondary School) at the time of making an application for the advertised post ----Apart from clear deficiency in the obtaining of a NOC by the appellant and its defective attestation, the appellant had applied for the same post at two different places by using different domicile certificates; one for her own place of residence and the second procured by her on the ground of residence of her husband---Such exercise on part of the appellant could not be appreciated in law----Party approaching the High Court in its Constitutional Jurisdiction in fact seeks equitable relief and the party which did not approach the High Court with clean hands was hardly entitled for such a relief---Appellant had not approached the High Court with clean hands, intra-court appeal was dismissed, in circumstances.

Jamshaid Akhtar Khokhar for Appellant.

Sardar Muhammad Shahzad Khan Dhukkur, Asstt. A.-G. along with Shahid Jamil, Asstt. Director (Litigation)/EDO (Education) and Mian Ishaq, SSS Incharge Recruitment Cell EDO (Education) Bahawalpur for Respondents.

2012 P L C (C.S.) 1417

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

HAQ NAWAZ

versus

EXECUTIVE DISTRICT OFFICER REVENUE (CHAIRMAN DEPARTMENTAL SELECTION COMMITTEE), JHANG and 19 others

Writ Petition No.1415 of 2007, decided on 30th November, 2011.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner had applied for the post of patwari and alleged that he was ignored for the post and under political influence, respondents were given the available posts---Validity---Facts on record were sufficient to prove that the Selection Committee had ignored the petitioner under illegal influence and interference by Members of the Parliament---Petitioner was more educated and had more experience than the respondents---High Court directed that without declaring the appointment of other respondents illegal, the petitioner be accommodated against any available post of Patwari---Constitutional petition was allowed, accordingly.

Syed Faiz-ul-Hassan for Petitioner.

Malik Asif Ahmad Naswana for Respondents.

Shahid Mubeen, Addl. A.-G., Punjab.

2012 P L C (C.S.) 1419

[Lahore High Court]

Before Shujaat Ali Khan, J

RUQIA BIBI

versus

DISTRICT COORDINATION OFFICER, MIANWALI and 3 others

Writ Petition No.3604 of 2010, decided on 27th April, 2012.

(a) Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----Rr. 2 & 17-A---Punjab Civil Servants Act (VII of 1974), S.2(1)(b)---Claim of daughter of deceased civil servant to award her 10 additional marks---Civil servant having died during service, his daughter claimed that she be awarded 10 additional marks on account of R.17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974; and that merit list be corrected accordingly---Claim of the daughter of the deceased was rejected---Validity---Provisions of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, were confined to the children of those civil servants, who at the time of their death or retirement on medical grounds, were in service of the Province of Punjab; and by no stretch of imagination, the same could be made applicable to the children of a person who was serving in any Federal Department at the relevant time---Deceased civil servant being an employee of Federal Government, her case was not covered under S.17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, and she was not entitled to 10 additional marks.

Sohail Khan and another v. Secretary Establishment Division Islamabad and another 2004 PLC (C.S.) 1466 distinguished.

The Murree Brewery Company Ltd. v. Pakistan through Secretary Government of Pakistan Works Division and 2 others PLD 1971 SC 279; The State through Deputy Attorney-General v. Muhammad Amin Haroon and 14 others 2010 PCr.LJ 518; Iftikhar Hussain and others v. Government of Pakistan and others 2001 PCr.LJ 146; Muhammad Hussain Patel v. Ghaffar Wali Muhammad and others PLD 1972 Kar. 421 and Syed Akhlaque Hussain v. Habib Ismael Bajwa PLD 1969 Lah. 563 rel.

(b) Interpretation of statutes---

----While interpreting a statute, general meaning of a word should be construed---Rules and Regulations applicable in one administrative organ of State could not be used for advantage or disadvantage of anybody in the other organ---Provisions of a Federal Statute, could not be made applicable to the employees of Provincial Government.

Jahangir Sarwar and others v. Lahore High Court and another 2011 SCMR 363; Mst. Ubaida Manzoor v. Government of the Punjab and 4 others 2012 PLC (C.S.) 101 and Justice Khurshid Anwar Bhinder and others v. Federation of Pakistan and another PLD 2010 SC 483 rel.

Malik Salim Iqbal Awan for Petitioner.

Rana Shamshad Khan, A.A.-G.

2012 P L C (C.S.) 1437

[Lahore High Court]

Before Malik Shahzad Ahmad Khan, J

ASIA RIAZ

versus

E.D.O. (EDUCATIONAL), CHAKWAL and 2 others

Writ Petitions Nos.1960, 1961, 1983 and 2006 of 2011, decided on 10th August, 2011.

Punjab Civil Servants Act (VIII of 1974)---

----S. 9---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Arts.199 & 212(2)---Constitutional petition---Maintainability---Petitioners had challenged their transfer from one place of working to another---Validity---Constitutional jurisdiction of High Court could only be invoked, if no other adequate remedy was provided by law, whereas in the present case, the petitioners being civil servants, were governed by the Punjab Civil Servants Act, 1974---Question of posting/transfer of a government servant, squarely fell within the jurisdictional domain of the competent Authority---Petitioners had alternate remedy available under S.4 of the Punjab Service Tribunals Act, 1974---Constitutional jurisdiction, therefore, could not be invoked to get said controversies resolved---Article 212(2) of the Constitution, had ousted the jurisdiction of all other courts---Orders of the Departmental Authority, even though without jurisdiction, illegal or mala fide, could be challenged only before the Service Tribunal---Under provisions of S.9 of Punjab Civil Servants Act, 1974, a civil servant of a Province was liable to serve anywhere within or outside the Province, in any post under the Provincial or Federal Government---Petitioners could not place on record any document to show that impugned transfer orders of the petitioners, were passed under political influence---No fundamental right was involved with regard to the postings, transfer or promotion of civil servants---Question of infringement of any constitutional right therefore did not arise, in circumstances.

Abdul Razaq v. Government of Balochistan, Communication Works Physical Planning and Housing Department, Quetta through Secretary 2010 PLC (C.S.) 1046; Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh, Karachi and 2 others 2007 PLC (C.S.) 824; Muslimabad Cooperative Housing Society Ltd. through Secretary v. Mrs. Sidiqa Faiz and others PLD 2008 SC 135 and Muhammad Shafiq v. Secretary to the Government of the Punjab Agricultural Department, Lahore and another 2008 PLC (C.S.) 273 distinguished.

Secretary to Government of the Punjab Health Department, Lahore and others v. Dr. Abida Iqbal and another 2009 SCMR 61; Dr. Younis Asad Shaikh v. Province of Sindh through Secretary, Health Department, Government of Sindh 2009 PLC (C.S.) 735; Agricultural Development Bank of Pakistan v. Imtiaz Ahmed Gill 1999 SCMR 650; Peer Muhammad v. Government of Balochistan through Chief Secretary and others 2007 SCMR 54; Asadullah Rashid v. Haji Muhammad Muneer and others 1998 SCMR 2129 and Superintending Engineer, Highways Circle, Multan and others v. Muhammad Khurshid and others 2003 SCMR 1241 rel.

Haroon Irshad Janjua for Petitioner (in W.P.No.1960 of 2011).

Mir Muhammad Ghufran Imtiazi for Petitioner (in W.P.No.1961 of 2011).

Raja Amjad Iqbal for Petitioner (in W.P.No.1983 of 2011).

Sardar Sohail Asmat for Petitioner (in W.P.No. 2006 of 2011).

Raja Muhammad Hameed, Asstt. A-G. with Dr. Moin, Litigation Officer, Office of District Officer (Health).

2012 P L C (C.S.) 1462

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan, J

MUHAMMAD AJMAL

versus

PUNJAB PUBLIC SERVICE COMMISSION and others

Writ Petition No.3977 of 2012, decided on 24th April, 2012.

Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976---

----R. 3---Constitution of Pakistan, Art.199---Constitutional petition---Appointment---Age limit---Relaxation of---Petitioner who was posted as P.T.C. teacher in Government High School, improved his academic qualification and acquired Master's degree in the subject---When Public Service Commission announced posts of Lecturers of B.S.17, the petitioner appeared for the said post and he successfully passed the written test, but in interview he was informed that he was overage of 1 year, 9 months and 7 days---Submission of the petitioner was that under R.3 of Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976, the continuous service of civil servant would be excluded from his age, provided upper age limit would not exceed 35 years; and as the petitioner was below 35 years he was entitled to be appointed for the post---Authorities, though had allowed 5 years age relaxation, but unilaterally reduced initial age from 30 years to 28 years---Proviso to R.3, Punjab Civil Servants (Relaxation of Upper Age Limit) Rules, 1976 having specifically, provided upper limit as 35 years with grace period of 5 years in terms of notification dated 4-9-2006, authorities had no right to fix upper age limit as 33 years inclusive of 5 years---Petitioner being below 35 years at the time when he applied for the post advertised, impugned order whereby review application of the petitioner was rejected, was set aside declaring the same without lawful authority, in circumstances.

Muhammad Iqbal Mohal for Petitioner.

Ch. Muhammad Iqbal, Addl. A.-G., Punjab along with Muhammad Farooq Raja, Deputy Director Legal PPSC.

2012 P L C (C.S.) 1470

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan and Shahid Waheed, JJ

Ch. IFTIKHAR AHMAD

versus

CHIEF SECRETARY PUNJAB and others

I.-C.A. No.893 of 2010, heard on 26th April, 2012.

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---

----R. 22---Constitution of Pakistan, Arts.9, 10-A & 25---Law Reforms Ordinance (XII of 1972), S.3---Ad hoc service---Regularization of---Employee who joined the service as regular Senior School Teacher, later on was appointed as an ad hoc Lecturer---Authority terminated en bloc the services of all the ad hoc Lecturers, employee joined her previous service as Senior School Teacher---Later on said termination orders were recalled and as a result the employee was again given the post of Lecturer, with a direction to appear before Special Selection Board for interview/assessment of her suitability for regularization in service---Employee could not appear before the said Special Selection Board which was abolished before her joining the post; her colleagues who also did not appear before the said Board were regularized, but the employee was refused regularization of service---Employee filed appeal before the Service Tribunal which disposed of said appeal with direction to the Chief Secretary as well as Secretary Education to seriously consider the reconstitution of an ad hoc Special Selection Board so as to assess suitability of the employee for regularization of her service---Application filed by the employee for implementation of directions of the Tribunal could not evoke favourable response with the sense of frustration the employee died and after her death, her husband made a request to the Authority for implementation of judgment rendered by Service Tribunal and to regularize 28 years service as ad hoc Lecturer of deceased employee so as to get due pensionary benefits, but the authorities did not budge---Constitutional petition filed by the husband of the employee having been dismissed by the High Court, husband of deceased employee filed intra-court appeal---Representative of the Higher Education Department presented before the court order whereby deceased employee's services were regularized prior to date when the employee joined duty as ad hoc Lecturer---Authorities being Public Officers abused their respective offices, either by an act of omission or commission, and as a consequence thereof an injury was caused to the deceased employee---Action of the authorities by all means constituted misfeasance in Public Office which was a clear violation of Arts.9, 10-A and 25 of the Constitution---Allowing intra-court appeal, impugned order passed by the Single Judge of High Court was set aside with the direction to the authorities to regularize the services of the late employee from the date when she joined as ad hoc Lecturer.

Council of Civil Services Union v. Minister for Civil Services (1985) 1 AC 374; Associated Provincial Picture Houses v. Wednesbury Corporation (1947) 1 KB-223; Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others 2012 SCMR 455; Najam Abbass and others v. S.P. City Division, Gujranwala and others 2006 SCMR 496; Province of the Punjab through Collector District Khushab, Joharabad and others v. Haji Yaqub Khan and others 2007 SCMR 554; Overseas Pakistanis Foundations and others v. Sq. Ldr. (Retd.) Syed Mukhtar Ali Shah and another 2007 SCMR 569 and Ijaz Akbar Kasi and others v. Minister of Information and Broadcasting and others PLD 2011 SC 22 rel.

Ch. Waris Ali Saroya for Appellant.

Muhammad Iftikhar-ur-Rasheed, A.A.-G. with Shahid Fareed, Deputy Secretary, Higher Education. Department for Respondents.

Date of hearing: 26th April, 2012.

2012 P L C (C.S.) 1496

[Lahore High Court]

Before Muhammad Khalid Mehmood Khan and Muhammad Ameer Bhatti, JJ

JOHNSON BERNARD

versus

LAHORE HIGH COURT, LAHORE

Service Appeal No.19/Gaz-II of 2010, heard on 26th March, 2012.

High Court Establishment (Appointment and Conditions of Service) Rules---

----R. 26---Constitution of Pakistan, Art. 199---Constitutional petition---Increment, grant of---Powers of Chief Justice---Grievance of petitioner was that Chief Justice of High Court allowed two advance increments to him and to one other official, but the same were not paid to him---Validity---Chief Justice of High Court enjoyed absolute powers under R. 26 of High Court Establishment (Appointment and Condition of Service) Rules, to grant increments to any employee of High Court including the Registrar of High Court---Registrar of High Court had no authority to amend, alter or add any word in the order passed by the Chief Justice High Court---Registrar had no authority in law to interfere in the orders of Chief Justice passed under R. 26 of High Court Establishment (Appointment and Condition of Service) Rules---No limitation run against a void order---High Court declared that note put up by Registrar was without lawful authority and as such all orders passed on the basis of proposal of Registrar were nullity in the eyes of law---Order of Chief Justice of High Court remained in field without any attack on the part of competent authority---Petition was allowed in circumstances.

Saif-ul-Malook for Appellant.

Malik Abdul Aziz Awan, Asstt. A.-G. Punjab with Ali Akbar Shah, Additional Registrar (Establishment) and Muhammad Naseem Kashmiri, Dy. A.-G. for Pakistan for Respondents.

Date of hearing: 26th March, 2012.

2012 PLC (C.S.) 1508

[Lahore High Court]

Before Abdus Sattar Asghar, J

MUHAMMAD HUSSAIN and others

Versus

GOVERNMENT OF PUNJAB and others

Writ Petitions Nos.11146 and 11289 of 2012, decided on 12th September, 2012.

Land Records Manual---

----Paras. 3.6 & 3.12---Punjab Revenue Department (Revenue Administration Posts) Rules, 2009---Constitution of Pakistan, Art.199---Constitutional petition---Patwari, appointment of---Grievance of petitioners was that they were Patwar-pass persons and under paras. 3.6 and 3.12 of Land Records Manual, they. were entitled to be posted as Patwaris---Petitioners had assailed advertisement for appointment of Patwaris published in different dailies---Validity---Government of Punjab for the last so many years through its own sources as well as with the help of international organizations was striving to computerize revenue record of various districts in the Province---To meet object of computerization of record, rules with regard to Revenue Administration Posts, including Patwaris were accordingly enforced in year, 2009, and maintaining of list of Patwar-pass candidates in terms of paras 3.6 and 3.12 of Land Records Manual, had lost its efficacy with efflux of time and to meet requirements in the age of information and technology for the purpose of computerization of revenue record---High Court did not find any factual or legal infirmity in advertisement issued by authorities---Constitutional petition was dismissed in circumstances.

Mst. Mumtaz Begum through Legal heirs and others v. Muhammad Shafique and others PLD 2009 Lah. 418; Ibrar Hussain v. Assistant Commissioner, Gujjar Khan and 3 others 2003 YLR 492 and Akhtar Hussain v. Assistant Commissioner/Collector, Sub-Division Kasur and 9 others 1996 PLC (C.S.) 943 distinguished.

Khadim Nadeem Malik for Petitioners (in Writ Petition No.11146 of 2012).

Mehr Khalil-ur-Rehman for Petitioners (in Writ Petition No.11289 of 2012).

Zafarullah Khan Khakwani, A.A.-G.

2012 P L C (C.S.) 137

[Peshawar High Court]

Before Syed Sajjad Hassan Shah and Fazal-e-Haq Abbasi, JJ

IBRAR KAMAL MARWAT

Versus

SENIOR MEMBER, BOARD OF REVENUE KHYBER PAKHTUNKHWA and 3 others

Writ Petition No.2973 of 2010, decided on 6th October, 2011.

(a) North-West Frontier Province Civil Servant (Appointment, Promotion and Transfer) Rules, 1989---

----R. 10---Constitution of Pakistan, Art.199---Constitutional petition---Naib-Tehsildar (BPS-14), post of---Death of petitioner's father during his employment as Extra Assistant Commissioner (BPS-17)---Refusal of authority to consider petitioner for his appointment on such post on ground that his father had died in year 1985 prior to promulgation of North-West Frontier Province Civil Servant (Appointment, Promotion and Transfer) Rules, 1989---Validity---Statute or rule giving right to citizens would always invariably operate retrospectively---Petitioner's father being a former employee having died during his service would be an employee for all intents and purposes notwithstanding Rules giving right to his son were promulgated in 1989---High Court directed authority to appoint petitioner on vacant post of Naib Tehsildar subject to availability of post falling within quota meant for son/daughter of deceased civil servant without making any requisition to Provincial Public Service Commission.

(b) Interpretation of statutes-

--Retrospective application of statute/rule---Scope---Statute or rules giving right to citizens would always invariably operate retrospectively.

Mukhtiar Ali for Petitioner.

Obaid Razzaq, A.A.-G. for Respondents.

Date of hearing: 6th October, 2011.

2012 P L C (C.S.) 200

[Peshawar High Court]

Before Mazhar Alam Khan and Waqar Ahmad Seth, JJ

MUHAMMAD YASIR

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary and 5 others

Writ Petitions Nos.1597 of 2011, 3848, 1668, 3951 of 2010, and 2330 of 2011, decided, on 22nd November, 2011.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989---

----R. 10(2)(4)---Constitution of Pakistan, Art.199---Constitutional petition---Appointment of son of employee who died during service against quota reserved for deceased's son---Father of the petitioner who was promoted as Sub-Inspector of -Police having died during performance of his duties, petitioner being real son of the deceased had sought appointment as an Assistant Sub-Inspector against the said quota---Under provisions of R.10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, if a civil servant died during service, notwithstanding the procedure provided for in sub-rule (2) of R.10 of the Rules, the Appointing Authority could appoint one of the children of such civil servant; or if the child had not attained the age prescribed for appointment, the widow of such civil servant to a post in any of the basic pay scales 1 to 15---Petitioner being son of deceased had requisite qualification, but his request for appointment was turned down---Authorities were directed by High Court to consider the case of the petitioner, on the strength of R.10(4) of Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989.

Aminur Rehman for Petitioner.

Barrister Waqar Ali, D.A.-G. for Respondents.

Date of hearing: 22nd November, 2011.

2012 P L C (C.S.) 693

[Peshawar High Court]

Before Miftah-ud-Din Khan and Waqar Ahmad Seth, JJ

AHMED YAR

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Chief Secretary, Khyber Pakhtunkhwa and 5 others

Writ Petition No.1665 of 2011, decided on 25th January, 2012.

Educational and Training Institution Ordinance (III of 1971)---

---S. 20---Fazal-e-Haq College, Mardan (Terms and Conditions of Service) Regulation, 2010---Constitution of Pakistan Art. 199---Constitutional petition--- Non-statutory establishment--- College (respondent) had advertised a post for a master and petitioner considering himself eligible for the same, applied for the post and was called for an interview before the Selection Committee, where despite scoring highest marks, he was not appointed to the post---Petitioner approached Education Department, which formed an inquiry committee---Inquiry committee directed the College administration to appoint the petitioner against the post but nothing was done in that regard---Petitioner had previously filed a Constitutional petition concerning the same cause of action, which was dismissed as being non-maintainable with the finding that the College was not a statutory body---Contention of petitioner that there were changed circumstances in which present Constitutional petition was filed and another Constitutional petition filed by a different petitioner against the College was entertained and allowed and as such present petition was maintainable---Validity---Constitutional petition filed by the petitioner previously had been held to be non-maintainable and against that order a review petition was still pending in the High Court---Fresh constitutional petition could not be filed when petition on the same cause of action had been held to be non-maintainable and review against it was pending---Constitutional petition filed by another petitioner against the College, did not discuss the maintainability of the petition nor it was pointed out therein that the College was a non-statutory establishment---Whether the notification issued by Provincial Government under S.20 Educational and Training Institution Ordinance, 1971, Fazal-e-Haq College, Mardan (Terms and Conditions of Service) Regulation, 2010, was a statutory or non-statutory notification was not clear because neither the notification mentioned that same was published in the official gazette nor there was any approval of the Board of Directors of the College, in that respect, which was a pre-requisite for the statutory status---Constitutional petition was non-maintainable and accordingly was dismissed.

Ghulam Mohyuddin Malik for Petitioner.

Obaid Razaq, A.A.-G. for Respondents Nos.1 and 2.

Amjad Ali for Respondents Nos.3 to 6.

Date of hearing: 23rd January, 2012.

2012 P L C (C.S.) 790

[Peshawar High Court]

Before Miftahuddin Khan and Waqar Ahmed Seth, JJ

MUHAMMAD QASIM KHATTAK

versus

ADMINISTRATIVE COMMITTEE, PESHAWAR HIGH COURT, PESHAWAR and others

Civil Miscellaneous No.1 of 2009 in Service Appeal No.1 of 1997, decided on 28th January, 2012.

Khyber Pakhtunkhwa Subordinate Judiciary Service Tribunal Act (III of 1991)---

----S. 5---Adverse remarks---Expunction of---Adverse remarks in Annual Confidential Report of employee, who at the relevant time was serving as Civil Judge/Judicial Magistrate, were communicated to him after those were countersigned by the then Chief Justice of High Court---Scope---Civil servant feeling aggrieved thereof, preferred, representation before Administration Committee of the High Court which was rejected---Validity---Plea of employee that being inducted into Judicial Service in the year, 1995 if at all there was any complaint of his behaviour towards the superiors and general public, same could have been cured through counselling, had no force, as counselling was directory and not mandatory---Even otherwise, District and Sessions Judge and the Chief Justice, were the officers who could accurately assess the work and conduct of the subordinate Judicial Officer serving under them; they were the best judges of his work, conduct and character, which opinion could be very extensive, depending on their own observation, the general reputation and such other material, which could have been brought in the notice of the employee, and generally did not form part of record---Evaluation of the performance of a subordinate by a Reporting Officer or the Countersigning Officer, was a matter of subjective assessment and not an objective evaluation---Tribunal or the court, could not substitute the view recorded by the Reporting Officer or the Countersigning Officer, nor it would interfere with the above evaluation---Such was, however, subject to exceptions, firstly, when the Reporting Officer or the Countersigning Officer herself, did not enjoy good reputation and mala fide was alleged against him with full particular and secondly, when there had been gross violation of instructions, which resulted in miscarriage of justice---In the present case, nothing had been alleged in the grounds of appeal, nor any such allegation against the Reporting Officer or the Countersigning Officer had been argued---No ground for interference in the impugned decision of Administration Committee, of the High Court having been made out, appeal was dismissed.

Maazullah Barkandi for Petitioner.

Zahid Yousaf Qureshi and Anis Bacha, M.I.T. for Respondents.

2012 P L C (C.S.) 905

[Peshawar High Court]

Before Attaullah Khan and Mian Fasih-ul-Mulk, JJ

MUHAMMAD ZAHIR SHAH and 49 others

versus

PROVINCIAL POLICE OFFICER, KHYBER PUKHTUNKHWA, PESHAWAR and 4 others---Respondents

Writ Petition No.3113 of 2010, decided on 29th February, 2012.

(a) North-West Frontier Province Government Education and Training Institutions Ordinance (III of 1971)---

----Ss. 1(3) to 4 & 20(2)(e)---West Pakistan General Clauses Act (VI of 1956), Ss.2(41) & 20---Constitution of Pakistan, Art.199---Constitutional petition---Police Public School, Peshawar---Notification dated 1-2-1996 issued by Government de-linking said School from ambit of North-West Frontier Province Government Education and Training Institutions Ordinance, 1971 published in official Gazette on 5-8-2011---Revision of basic pay scale by Government of its employees in year 1995 without extending its benefit to employees of such School---Dismissal of service of some petitioners for misconduct under newly framed Constitution of 2007 of the School by Provincial Police Officer---Petitioners' plea that the School could not be taken outside orbit of the Ordinance, by virtue of Notification dated 1-2-1996 not published in official gazette earlier---Validity---According to S.2(41) of West Pakistan General Clauses Act, 1956, word "notification" would mean a notification published under proper authority in official Gazette---Notification not published in official Gazette would not have any legal effect---Retrospective effect could be given to a statute extending monetary benefits to public, but not in case of taking away vested rights---Impugned notification had taken away vested rights of petitioners, thus, without its publication in official Gazettee, no retrospective effect could be given thereto from date of its publication on 6-8-2011---Authority had not acted upon impugned notification by convening any meeting of Board of Governors of the School ---Authority had failed to follow due process as required by law, thus, impugned notification had no binding effect and all acts done thereunder against petitioners would fall to ground---High Court set aside impugned notification, declared disciplinary proceedings initiated against petitioners as without lawful authority and directed the authority to allow petitioner all benefits extended to other employees of Government.

Chief Administrator Auqaf v. Mst. Amna Bibi 2008 SCMR 1717; Haji Malik Amanullah Khan v. Khyber Khan and others 2008 SCMR 1723; Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Province of East Pakistan v. Major Nawab Khawaja Hassan Askary and others PLD 1971 SC 82; Pakistan through Secretary, Ministry of Defence and others v. Late Ch. Muhammad Ahsan through Legal Heirs and others 1991 SCMR 2180 and Muhammad Siddique v. The Market Committee Tandlianwala 1983 SCMR 785 ref.

Muhammad Suleman and others v. Abdul Ghani PLD 1978 SC 190; Karachi Metropolitan Corporation, Karachi v. Messrs S.N.H. Industries (Pvt.) Limited, Karachi and 2 others 1997 SCMR 1228 and Government of Sindh through Secretary Agriculture and Livestock Department and others v. Messrs Khan Ginners (Private) Limited and 57 others PLD 2011 SC 347 rel.

(b) Constitution of Pakistan---

----Art. 199---West Pakistan General Clauses Act (VI of 1956), S.20---Constitutional petition---Laches---Vires of Notification of year 1996 challenged in year 2010---Petitioners' plea was that impugned notification was never published in official gazettee---Validity---Impugned notification was neither published in official gazette nor served upon the petitioners personally---Receipt of impugned notification by an official in Accounts Branch of petitioners' institution would not mean that they were duly informed about the same---No unreasonable lapse of time on part of petitioners or their negligence to assert such matter before court was found---High Court proceeded to hear constitutional petition on merits.

(c) Laches---

----Determination of---Duty of Court---Scope stated.

Laches is equivalent to statute of limitation, however unlike statute of limitation, laches leaves it upto the court to determine whether petitioner slept over his rights and whether he has waited too long to seek relief.

(d) Interpretation of statutes---

----Notification and statute---Prospective or retrospective operation---Determining factors stated.

Every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation. Similarly, notifications which may affect the rights of the parties are treated to be prospective in nature, unless the notification itself clearly indicates that it will have retrospective effect.

If a legislation, which is aimed to extend some monetary benefits to the public can be given retrospective effect; the same in the case of taking away vested rights cannot be given retrospective effect.

Syed Arshad Ali for Petitioner.

Tariq Khan Kakar and Rifaqat Ali for Respondent.

2012 P L C (C.S.) 1113

[Peshawar High Court]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

GHULAM QASIM KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secondary (School and Literacy) Education Department, Peshawar and 3 others

Contempt of Court Petition No.46-B of 2011, decided on 1st March, 2012.

Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfers) Rules, 1989---

----R. 10---Contempt of Court Ordinance (V of 2003), Ss. 3, 5 & 6---Constitution of Pakistan, Art.204---Contempt of court---Applicant (petitioner) had filed a Constitutional petition praying for his appointment against the post on basis of quota reserved for ex-army personnel, which Constitution petition on the request of the applicant was treated as a representation by the High Court to be decided in accordance with the law, rules and policy of Government---Contention of applicant was that he had a right to be appointed against the said post in accordance with the 10% quota as per notification of Department of Provincial Government, and since Department was not obeying the order of the High Court, same amounted to contempt of court---Contention of Department was that Constitutional petition was treated as representation by the High Court to be decided on merits and in accordance with the law; that no directions as such were given to the Department for appointment of the applicant; that no ex-army personnel quota existed to accommodate the applicant against the post, and that after treating Constitutional petition as a representation, the applicant was asked through a letter to follow the procedure detailed in the advertisement, but he failed to do so---Validity---No quota for ex-army personnel existed in the Khyber Pakhtunkhwa Civil Servants (Appointment, Promotion and Transfer) Rules, 1989, and therefore grievance of applicant stood repudiated by the Rules, wherein any quota if available to the applicant as per notification of the Provincial Government had since been dispensed with---Department had acted in accordance with law, rules and policy of the Government, and had not committed any contempt of High Court as alleged by the applicant---Petition for contempt of court was dismissed, in circumstances.

Shahid Saleem Khan Minakhel for Petitioner.

Faridullah Khan, D.A.-G. for Respondents.

Date of hearing: 1st March, 2012.

2012 P L C (C.S.) 1187

[Peshawar High Court]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

IKRAMULLAH KHAN

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary (Elementary and Secondary) Education Department, Peshawar and 4 others

Writ Petition No.475-B of 2011, decided on 1st February, 2012.

Constitution of Pakistan---

----Arts. 199 & 212---Constitutional petition---Maintainability---Civil service---Petitioner assailed vires of the notification whereby he was transferred from his post---Validity----Petitioner had not knocked on the right door by invoking Art.199 of the Constitution---Question of posting/transfer purely related to terms and conditions of government service and Art.212 of the Constitution had explicitly ousted jurisdiction of all courts including the High Court pertaining to service matters and conferred exclusive jurisdiction on the Service Tribunal in that respect---Plea of mala fide as alleged by the petitioner could not confer upon the court the jurisdiction to act in the matter in view of the bar contained in Art.212 of the Constitution----Constitutional petition was dismissed.

2007 SCMR 54 rel.

Muhammad Shah Nawaz Khan Sikandri for Petitioner.

Ahmad Farooq Khattak, A.A.-G. for Respondents.

Date of hearing: 1st February, 2012.

2012 P L C (C.S.) 1289

[Peshawar High Court]

Before Khalid Mahmood and Yahya Afridi, JJ

AMIR KHAN and 2 others

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Revenue and Estate, Khyber Pakhtunkhwa, Peshawar and 16 others

Writ Petitions Nos.129-A, 175 and 190 of 2012, decided on 10th April, 2012.

Land Records Manual---

----Paras. 3.6, 3.10 & 3.11---Notification No.SO.XLX-1-55/58-Part II (1963)---Constitution of Pakistan, Art.199---Constitutional petition---Civil Service---Appointment of Patwaris---Petitioners assailed their non-appointment as Patwaris despite having qualified for the same---Validity---According to para.3.6 of the Land Records Manual, a merit list of all Patwar persons in each sub-division according to the year-wise commencement of the Patwar Course shall be maintained by the Sub-divisional Collector/Political Assistant---No distinction existed regarding the "settlement" and the "field" course and vacancies were to be filled up with the ready information about the availability of eligible persons in the Sub-Division irrespective of the fact whether a person had passed the "field" or the "settlement course" from the Patwar School---Rules governing appointment of Patwaris clearly directed appointment of Patwaris strictly in accordance with Service Rules and the Recruitment Policy(Notification No. SO.XLX-1-55/58 - Part II)---High Court directed that the Authorities were required to display the merit list and the candidates were to be given appointment according to it, subject to passing of test interview and no discrimination was to be made---Constitutional petition was disposed of, accordingly.

Sardar Aman Khan for petitioners.

M. Nawaz Khan Swati, A.A.-G. for Respondents.

Date of hearing: 10th April, 2012.

2012 P L C (C.S.) 1296

[Peshawar High Court]

Before Mian Fasihul Mulk and Waqar Ahmed Seth, JJ

ZIA-UD-DIN KHAN SIDDIQUI

Versus

GOVERNMENT OF N.-W.F.P. through Chief Secretary and 12 others

Civil Miscellaneous No.3 of 2011 in Service Appeal No.7 of 1994, decided on 5h May, 2012.

N.-W.F.P. Subordinate Judiciary Service Tribunal Act (VIII of 1991)---

----S. 6---N.-W.F.P. Subordinate Judiciary Service Tribunal Rules, 1992, R. 27--- Civil Procedure Code (V of 1908), S.12(2)--- Jurisdiction and powers of the Tribunal---Scope--- Judicial officer (respondent) had moved the Tribunal, seeking promotion from the date of promotion of his juniors, with the contention that his promotion had been deferred for want of special reports pertaining to him --- Said contention of the judicial officer found favour with the Tribunal, however he was not found to be entitled to any arrears and only his case was considered towards pensionary benefits--- Contention of the applicant was that the Tribunal lacked the jurisdiction to assume powers of the Administration Committee/Department Promotion Committee of allowing pension benefits to the respondent (judicial officer)--- Validity--- Perusal of S.6 of N.-W.F.P. Subordinate Judiciary Service Tribunal Act, 1991, and R.27 of N.-W.F.P. Subordinate Judiciary Service Tribunal Rules, 1992, showed that the Tribunal had all the powers on appeal to confirm, set-side, vary or modify the order appeal against--- Tribunal had placed reliance on a notification issued by the Provincial Government, whereby a judicial officer was allowed promotion retrospectively and his case was to be considered for the purpose of pensionary benefits--- Impugned order of the Tribunal had been passed keeping in view the said notification and settled law on the subject, and no element of fraud, misrepresentation or lack of jurisdiction arose out of the same application was dismissed, in circumstances.

Barrister Waqar Ali, D.A.-G. for Petitioner.

Respondent in Person.

Date of hearing: 5th May, 2012.

2012 P L C (C.S.) 1307

[Peshawar High Court]

Before Mian Fasih-ul-Mulk, J

Dr. ATHAR IQBAL LODHI

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary, Department of Health, Peshawar and 2 others

Writ Petition No.339 of 2010, decided on 11th May, 2011.

Khyber Pakhtunkhwa Medical Institutions Rules, 2001---

----R.10 ---Constitution of Pakistan, Art.199---Constitutional petition---Civil service---Petitioner assailed notification for repatriation into the Provincial Health Department after his service was absorbed in the Medical Institution---Contention of the petitioner was that said notification was illegal and against the Rules---Validity---Rule 10 of the Khyber Pakhtunkhwa Medical Institutions Rules, 2001 made it clear that a person who opted to serve under a Medical Institution ceased to be an employee of the Government from date of his notification for absorption in the service of the Medical Institution---"No Objection Certificate" (NOC) from the Secretary Health or the Provincial Government was not issued in that regard---After the absorption of the petitioner in the Medical Institution, the Provincial Government had no lawful authority to repatriate the services of the petitioner to the Health Department of the Provincial Government---High Court declared the impugned actions as illegal and without lawful authority and set aside the same---Constitutional petition was allowed, accordingly.

M.A. Tahirkheli, Rashidul Haq Qazi and M. Akbar Khan Swati for Petitioner.

Sajid Iqbal for Respondents.

Date of hearing: 11th May, 2011.

2012 P L C (C.S.) 1326

[Peshawar High Court]

Before Nisar Hussain Khan and Qaiser Rashid Khan, JJ

Dr. AJMAL SHAH

Versus

GOVERNMENT OF KHYBER PAKHTUNKHWA through Secretary Health Department, Health Secretariate, Peshawar and 2 others

Writ Petitions Nos.728, 144-B of 2010 and 129 of 2011, decided on 30th January, 2012.

Constitution of Pakistan---

----Art. 199--- Constitutional petition--- Civil Service--- Ad hoc contractual appointment---Petitioners assailed appointment of the respondent as Assistant Professor Surgery on an ad hoc contractual basis on the ground that said appointment by authorities was arbitrary and without lawful authority---Contention of the petitioners was that they were more qualified than the respondent---Validity---Ultimate authority for appointment vested with the Public Service Commission---High Court deprecated the ad-hocism undertaken by the authorities without placing proper requisition with the Public Service Commission and directed that the entire process for selection through requisition be completed not later than six months---High Court further directed that the contract appointment of the respondent should not be renewed and the post should be filled by the selectee of the Public Service Commission and other experienced and qualified candidates could also apply in such selection---Constitutional petition was disposed of accordingly.

Rustam Khan Kundi for Petitioner.

Faridullah Khan, D.A.-G. and Anwar-ul-Haq for Respondents.

Date of hearing: 30th January, 2012.

2012 P L C (C.S.) 823

[Punjab Service Tribunal]

Before Zafar Iqbal, Member-I

MUHAMMAD NAWAZ

versus

ADDITIONAL I.-G. POLICE PUNJAB HIGHWAY PATROL, LAHORE

Civil Miscellaneous No.662 of 2011 in Appeal No.311 of 2010, decided on 2nd January, 2012.

(a) Punjab Service Tribunal Act (IX of 1974)---

----Ss. 3(3) & 4---Dismissal of appeal on merits by Service Tribunal---Application for recalling the dismissal order on the ground that Tribunal could not function because the tenure of the Chairman of the Tribunal had expired and that post of Chairman was lying vacant---Outgoing Chairman had clearly ordered that Member-II of the Service Tribunal, would remain available during winter vacations for taking up matters of urgent nature which meant that Service Tribunal was functioning in the absence of its Chairman during winter vacation---Tribunal's functioning was not affected due to vacancy of Chairman---Composition of the Service Tribunal, simultaneously, did not convey the meaning of decomposition of the Tribunal---Punjab Service Tribunal Act, 1974, did not mention specifically about the non-functioning of the Tribunal---No notification was issued that Tribunal would remain non-functional in the absence of the Chairman---Tribunal, which was not "quorum" oriented, would remain "functional" even in the absence of the Chairman of the Tribunal---Distinction existed between a vacancy in any office and its abolition---Existence of a vacancy, would imply that the office existed---Temporary vacancy in any office, would not affect the constitution and jurisdiction of the Tribunal---Service Tribunal would be only affected, if the office of the Chairman of the Tribunal, was abolished---Constitution and continuity of the Tribunal, was not affected by a temporary vacancy in the office of the Chairman, Tribunal or any of Members from among the prescribed strength of the Tribunal; it would be affected only, if the office of the Chairman was abolished.

Zulfiqar Ali Bhutto v. The State PLD 1978 SC 40 and Khalid Siddiqui v. Secretary Excise and Taxation Department, Government of Punjab, Lahore 2000 PSC 1107 rel.

(b) Constitution of Pakistan---

----Arts. 189 & 190---Every decision of the Supreme Court, was binding on each and every organ of the State by virtue of Arts.189 & 190 of Constitution, unless there was 'obiter dicta'---Superior Courts derived their strength from the Constitution, whereas, the Tribunal obtained strength from the Act which would be binding by all means on the Service Tribunal to follow the decision of the apex court in letter and spirit.

Ch. Tariq Javed for Appellant.

Robin Inayat Bhatti, District Attorney for Respondent.

2012 P L C (C.S.) 839

[Punjab Service Tribunal]

Before Muhammad Sayeed Akhtar, Chairman

ZAHID ALI and 7 others

versus

DISTRICT AND SESSIONS JUDGE, NANKANA SAHIB and another

Appeals Nos.913 to 918 of 2011, 3651 and 3652 of 2010, decided on 2nd February, 2012.

Punjab Civil Servants Act (VIII of 1974)---

----S. 10---Punjab Service Tribunals Act (IX of 1974), S.4---Termination of service---Appellants, while still were on probation, their services were terminated with direction to initiate criminal proceedings against them on account of production of bogus domicile certificates---Validity---No doubt service of the probationer could be terminated any time during the probation period, but, if a stigma was attached to the termination of even a probationer, show-cause notice had to be issued to him; and fair opportunity of defending himself was to be provided---In the present case no such exercise was ever taken; neither any show-cause notice was issued to the appellants nor was any reply received from them; process of inquiry was also lacking---Appellants aught to have been issued show-cause notices and inquiry should have been held strictly in accordance with law---Appellants had been removed from service on the direction of Chief Justice of High Court and competent authority who was Senior Civil Judge, passed termination order without application of independent mind without holding an inquiry and providing reasonable opportunity of showing cause---Impugned orders were set aside and the appellants were reinstated in service.

Zeeshan Ahmad Malik for Appellants (in Service Appeals Nos.913 to 918 of 2011).

Sardar Muhammad Ramzan for Appellants (in Appeals Nos.3651 and 3652 of 2010).

Humayun Akhtar Sahi, Dy. District Attorney and Muhammad Akram, Superintendent, Sessions Courts, Nankana Sahib and Muhammad Sadiq., COC/O/o Senior Civil Judge, Nankana Sahib, Departmental Representatives for Respondents.

2012 P L C (C.S.) 54

[Balochistan High Court]

Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ

RASHEED TAREEN

Versus

CHAIRMAN WORKS WELFARE BOARD BALOCHISTAN and 2 others

Constitutional Petition No.423 of 2009, decided on 25th August, 2011.

(a) Civil service---

----Deputation---Object and scope---Deputationist is a government servant, who is appointed or transferred through process of selection to a post in a department or service altogether different from the one to which he permanently belongs---Such government servant continues to enjoy his status so long as he holds the new post in an officiating or temporary capacity but seizes to be regarded, as such, either on confirmation/absorption in the new post or on reversion to his substantive post---When a person belonging to a particular service or cadre is transferred to another cadre or autonomous body, the same amounts to deputation and terms and conditions of such civil servant have to be settled between borrowing and lending authority---Tenure of such appointment is also term and condition of service as per Civil Servants Act, 1973 and when tenure is so fixed and notified it has to be honoured by both borrowing and lending authorities except in special circumstances when borrowing agency directs repatriation of deputationist.

(b) Workers' Welfare Fund Ordinance (XXXVI of 1971)---

----S. 11-B(3)---Workers' Welfare Fund (Employees Service) Rules, 1997, Rr.12 & 25(1)---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Aggrieved person---Scope---Terms and conditions of service---Deputation---Absorption in borrowing department---Grievance of petitioner was that after recommendation of Provincial Government, he could not be repatriated to his parent department and he had been absorbed in the borrowing department---Validity---Petitioner could not be permanently absorbed on mere recommendation of Provincial Government nor on the basis of "No Objection Certificate" issued by lending department, which had been subsequently been withdrawn---Petitioner was not validly recommended for permanent absorption in borrowing department by Selection Committee or Selection Board in view of Rr.12 & 25(1)(iv) of Workers Welfares Board (Employees Service) Rules, 1997---Deputationist through constitutional petition could not claim permanent absorption in borrowing department as it was the prerogative of borrowing department to determine tenure of deputation, to revert/return deputationist or to absorb a deputationist permanently---Petitioner was civil servant and could not claim permanent absorption as a matter of right as lien of petitioner with lending department was intact---Due to refusal by borrowing department for permanent absorption, petitioner could not be termed as an aggrieved person---Determination whether or not petitioner lawfully stood permanently absorbed in borrowing department was the matter pertained to terms and conditions of service of petitioner, therefore, Art.212 of the Constitution would come into play ousting jurisdiction of High Court to entertain and adjudicate upon the matter while exercising powers under Art.199 of the Constitution---High Court declined to interfere in the notification issued by the authorities---Petition was dismissed in circumstances.

Shahid Iqbal v. Government of Pakistan Islamabad 1995 PLC (C.S.) 143 and Muhammad Siddique v. Secretary Establishment Division 2001 PLC (C.S.) 973 rel.

Muhammad Qahir Shah for Petitioner.

Kamran Murtaza for Respondent No.1.

Nasrullah Khan Achakzai, Addl. A.-G.

Date of hearing: 8th August, 2011.

2012 P L C (C.S.) 98

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

ABDUL SATTAR

versus

FEDERATION OF PAKISTAN through Secretary Water andPower Development, Islamabad and 2 others

Constitutional Petition No.658 of 2011, decided on 10th October, 2011.

(a) Constitution of Pakistan---

---Art. 199---Constitutional jurisdiction of High Court---Scope---Electric Supply Corporation---Assistant lineman, post of Non issuance of appointment letter to petitioner after he was interviewed and declared qualified for such post---Validity---Record showed that petitioner being eligible was issued interview call letter containing a disclaimer to the effect that mere participation in interview would not create right or semblance of right---Petitioner had approached High Court after two years of his interview without explaining delay---Grant of relief under Art.199 of the Constitution would depend on existence of a fundamental or legal right of a person and its infringement---Person invoking such jurisdiction would have to establish that he was legally entitled to relief prayed for under any provision of law, rules or regulations---Petitioner had no locus standi to invoke constitutional jurisdiction of High Court for having failed to establish any such right and its infringement by Authority---High Court dismissed constitutional petition, in circumstances.

(b) Constitution of Pakistan---

Art. 199---Constitutional petition---Locus standi---Scope---Grant of relief under Art.199 of the Constitution would depend on existence of a fundamental or legal right of petitioner and its infringement---Petitioner invoking such jurisdiction would have to establish that he was legally entitled to relief prayed for under any provision of law, rules or regulations.

Zahid Mugeem Ansari for Petitioner.

Nemo for Respondents.

Date of hearing: 26th September, 2011.

2012 P L C (C.S.) 106

[Balochistan High Court]

Before Qazi Faez Isa, C.J. and Muhammad Hashim Khan Kakar, J

NIAZ MUHAMMAD KHOSO

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Quetta and 2 others

Constitutional Petition No.639 of 2011, decided on 10th October, 2011.

Balochistan Service Tribunals Act (V of 1974)---

---Ss. 4 & 5(2)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Non-implementation of order of re-instatement in service passed by Service Tribunal---Service Tribunal by virtue of S.5(2) of Balochistan Service Tribunals Act, 1974 was a civil court for purpose of deciding appeal regarding terms and conditions of a civil servant, thus, had powers of a civil court including those required to implement its judgments as provided under provisions of C.P.C. ---Service Tribunal in case of disobedience of its judgment could enforce same under applicable provisions of C.P.C.---Petitionet could avail such alternate and efficacious remedy before Service Tribunal---High Court disposed of constitutional petition, in circumstances.

Shoukat Ali Rakhshani for Petitioner.

Nemo for Respondents.

Date of hearing: 6th September, 2011.

2012 P L C (C.S.) 142

[Balochistan High Court]

Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ

MUHAMMAD ASGHAR

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary Balochistan and 6 others

Constitutional Petition No.178 of 2009, decided on 27th October, 2011.

(a) Constitution of Pakistan---

----Art. 199---Vires of legislative measures---Not open to scrutiny of superior courts on sole ground of mala fides---Reasons stated.

The vires of legislative measures is not open to scrutiny of the superior courts on the sole ground of mala fides, because legislative measures are presumed to be bona fide. It is true that High Court has the jurisdiction to examine whether or not a law is void by reason of conflict with the statute, fundamental rights, Constitution or is otherwise ultra vires, but it is equally true that the law should be saved rather than be destroyed and the court must lean in favour of upholding the constitutionality of legislation keeping in view that the rule of constitutional interpretation is that there is a presumption in favour of the constitutionality of the legislative enactments unless ex-facie it is violative of a constitutional provision.

(b) Constitution of Pakistan---

----Art. 25---Equal protection of law, concept of---Scope.

Equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike. Article 25 of the Constitution prohibits discrimination within the class, but does not prohibit the classification, as such criterion for reasonable classification is to see as to whether the basis of differentia has any rational nexus with its avowed policy and object and that the classification is rational and based on intelligible differentia.

(c) Balochistan Service Tribunals Act (V of 1974)---

----S. 4(1)---Appeal challenging vires of law, statutory service rules or notification adversely affecting terms and conditions of civil servant---Maintainability---Scope---Such law/rules/notification could be termed as an order in terms of S.4(1) of Balochistan Service Tribunal Act, 1974 and could be challenged in appeal before Service Tribunal---Principles.

Amendments made from time to time in the relevant rules pertaining to terms and conditions of civil servant can only be challenged by any civil servant/aggrieved person before the Balochistan Service Tribunal under the provisions of Balochistan Service Tribunals Act, 1974. The jurisdiction conferred upon Service Tribunal is not limited and all service matters including vires of service rules can be challenged before it. If a statutory rules or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Balochistan Service Tribunals Act, 1974 in order to file an appeal before the Tribunal. The Tribunal is competent to examine whether or not a law relating to terms and conditions of a civil servant is void by reason of its conflict with the fundamental rights or is otherwise ultra vires.

I.A. Sharwani v. Government of Pakistan through Secretary, Finance Division, Islamabad 1991 SCMR 1041 and Muhammad Asif v. Secretary to the Government of Punjab C&W Department 1990 PLC (C.S.) 257 rel.

(d) Constitution of Pakistan---

----Art. 199(1)(a)---Constitutional petition---Maintainability---Essential conditions stated.

Any person invoking constitutional jurisdiction has to establish firstly that he is an aggrieved party as defined in clause (1)(a) of Article 199 of the Constitution, secondly that relief sought by him is one, which he is legally entitled to seek under any provision of law, rules or regulations and, thirdly for seeking relief prayed by him no other forum or remedy is available to him.

It is sine qua non for invoking jurisdiction of High Court through constitutional petition that petitioner must be an aggrieved person and he must have a locus standi for availing such jurisdiction.

(e) Constitution of Pakistan---

----Art. 199---Constitutional petition---Aggrieved person---Scope.

A person or a party can be said to be aggrieved only when he is denied a legal right by some one, who has a legal duty to perform relating to that right. The right, which is the foundation of an application under Article 199 of the Constitution, is a personal and individual right, which may be a statutory right or a right recognized by the law unless whatever right, personal or otherwise, on which the application is based is established, no order can be issued under Article 199 of the Constitution.

It is sine qua non for invoking jurisdiction of High Court through constitutional petition that petitioner must be an aggrieved person and he must have a locus standi for availing such jurisdiction.

Asadullah Mangi v. Pakistan International Airlines Corporation 2005 SCMR 445 rel.

(f) Civil service---

----Appointment or promotion---Powers of Government to prescribe qualification---Scope.

It is exclusively within the domain of the Government to decide whether a particular qualification will be considered sufficient for appointment or promotion from a particular grade to a higher grade. The matters pertaining to framing of rules for appointment against a particular post is the exclusive prerogative of the Government and no body can claim any vested right in the policy.

Suo Motu Review Petition No.52 of 1993 rel.

Muhammad Ilyas Mughal for Petitioner.

Amanullah Kanrani, A.-G. for the State.

Muhammad Javed, Assistant Engineer (Tech.) and Washoo Mal, A.D. for Respondent No.4.

Dilawar Khan Kasi, A.D. Legal for Respondent No.6.

Nazeer Khajjak for Respondent No.7.

Date of hearing: 4th October, 2011.

2012 P L C (C.S.) 493

[Balochistan]

Before Qazi Faez Isa, C.J. and Abdul Qadir Mengal, J

Syed RAUF KHAN WAZIR

Versus

GOVERNMENT OF PAKISTAN through Secretary Establishment Division Cabinet Secretariat, Islamabad and 2 others

Constitutional Petition No.368 of 2011, decided on 3rd November, 2011.

Federal Public Service Commission Rules for (CSS) Competitive Examination, 2009---

----R. 7---Federal Public Service Commission Ordinance (XLV of 1977), S.7(3)---Civil Procedure Code (V of 1908), O.I, R.2---Constitution of Pakistan, Art.199---Constitutional petition---Central Civil Services (CSS) Examination---Non-acceptance of post offered to a candidate senior than petitioner on merit list ---Petitioner, being next successful candidate in CSS examination, was to be offered such post, but the Authority carried forward such vacancy to the next examination---Validity---Petitioner had neither passed Common Training Program nor approached the High Court upon learning about carrying forward of such post nor explained delay of about five months in approaching the High Court ---Petitioner had not explained as to why he failed to implead six candidates having prayed to be arrayed as respondents---Such six candidates had legitimate expectance to be selected to such post carried forward, thus, they ought to have been impleaded as parties ---Result of such six candidates had been published in newspaper before filing of such petition by petitioner ---Impugned order was not illegal or unlawful ---High Court dismissed constitutional petition in circumstances.

Mazhar Ilyas Nagi for Petitioner.

Malik Sikandar Khan, D.A.-G. along with intervenors Messrs Liaquat Ali, Aminullah and Abdul Wali Khan for Respondents.

Date of hearing; 3rd November, 2011.

2012 P L C (C.S.) 1048

[Balochistan High Court]

Before Muhammad Hashim Khan, Chairman

MUHAMMAD DAUD and others

Versus

GOVERNMENT OF BALOCHISTAN and others

Service Appeals Nos.153 and 177 of 2010, decided on 15th December, 2010.

(a) Balochistan Civil Servants Act (IX of 1974)---

----S. 5---Balochistan Service Tribunals Act (V of 1974), S.4---General Clauses Act (X of 1897), S.24-A---Appointment---Case of appellants/ employees was that posts of Planning and Community Development Officers were shown as BPS-17 in the advertisement published in newspaper, but they were appointed in BPS-16 instead of BPS-17---Representation made by the appellants before competent authority for up-gradation of their posts, having not been considered, the appellants had filed appeal before Service Tribunal---Submission of counsel for the authorities was that appellants who were regularized having accepted grade BPS-16 at their free-will, without any protest, question of waiver and estoppel was attracted in their cases---Contention raised by the counsel for the authorities was devoid of force as there was no equilibrium of bargaining strength between the appellants and the authorities and it could not be accepted that appellants should be continued to be governed on disgraceful terms and conditions for indefinite period---Authorities were required under S.24-A of General Clauses Act, 1897 to act reasonably, fairly and justly---Employees being jobless and in fear of being shown the door, had no option, but to accept and continue with the appointment on whatever conditions it was offered by the department---No reason was advanced by the authorities to justify the refusal to grant up-gradation to the appellants---When other departments had upgraded the employees, appellants should not be deprived of that benefit and they could not be discriminated---Authorities were directed to upgrade and re-designate the posts of Planning Officers/appellants from BPS-16 to BPS-17 from the date of their appointments with back-benefits.

Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 37 ref.

(b) Constitution of Pakistan---

----Preamble, Arts.2-A, 4, 25, 27 & 37---Administration of justice---Objectives Resolution---Right of individuals, equality of citizens, social justice---Equal treatment of all similarly situated, was the basic principle on which justice rested under the law---If even-handed justice was not administered, that could have many adverse and negative effects on the society; it could cause discontentment and frustration in the social set up---Social justice was an objective embodied and enshrined in the Constitution---Preamble and Art.2-A i.e. Objectives Resolutions, ordained that principle of equality and social justice as enunciated by Islam, would be observed---Non-observance of provisions of Arts.2-A, 4, 25, 27 & 34 of the Constitution and principles could amount to negation of constitutional mandates, dictates of justice and rule of good governance, which should be avoided as far possible.

Waseem Jadoon and Nasrullah Tareen for Appellants.

Abdul Aziz Khilji, Addl. A.-G. for Respondents.

Date of hearing: 2nd December, 2010.

2012 P L C (C.S.) 1171

[Balochistan High Court]

Before Nasrullah Khan Achakzai, Chairman, Muhammad Naeem Khan Ghilzai, and Shagufta Begum, Members FAHEEM ROBIN and others

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Home and Tribal Affairs, Quetta and others

Service Appeals Nos.223, 225 of 2010, 21 and 72 of 2011, decided on 23rd December, 2011.

Balochistan Civil Servants Act (IX of 1974)---

----Ss. 8 & 9---Balochistan Service Tribunal Act (V of 1974), S.4---Out of turn promotion---Central Police Officer by issuing a circular invited objections on the provisional seniority list of Inspectors of Police---Appellant filed objection, but competent authority on the very next date vide notification promoted respondents from Inspector (B-16) to the rank of DSP (B-17) with immediate effect without waiting for the finalization of seniority list of Inspectors, and without deciding the objections of the appellants on the provisional list---Whether circulation of the Circular in question had been served on all the Inspectors was not clear, nor proper opportunity for objections on the provisional list had been provided to them, which was a clear violation of settled law---Final seniority list was to be prepared and promotion would be made according to that list---Department had totally ignored said rules---Impugned notification was set aside and cases were remanded to Central Police Officer to issue a new circular of provisional seniority list and ensure the service and information of the provisional seniority list and after inviting objections and decisions thereon final list be issued---Cases of senior Inspectors who were entitled for promotion, could then be placed before the Departmental Promotion Committee for consideration---Order accordingly.

Zahid Muqeem Ansari, M. Naeem Bazai and Manzoor Ahmed Rehmani for Appellants.

Abdul Latif Kakar, Asstt. A.-G. and Gul Baran Represenative of P.P.O. for Respondents.

Date of hearing: 15th December, 2011.

2012 P L C (C.S.) 1211

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Khan Ghalzai, Membeer-I and Muhammad Anwar Khan, Member-II

ABDUL KHALIQ

Versus

GOVERNMENT OF BALOCHISTAN through Chief Secretary, Civil Secretariat and 3 others

S.A. No.141 of 2010, decided on 29th September, 2010.

(a) Balochistan Civil Servants Act (IX of 1974)---

----S. 9---Balochistan Service Tribunals Act (V of 1974), Ss.4 & 5---Balochistan Education Department (School Branch) (Men's Section) (Grade-1 and above) Service Rules, 1981, Appendix---Promotion---Powers of Service Tribunal---As per provisions of Departmental Rules, post of SST, was to be filled on basis of 50% promotion and 50% by initial recruitment---Criteria for promotion from amongst the members of the subordinate service was, possessing, B.A. & B.Ed. degree with five years experience in the relevant field and seniority-cum-fitness---Subsequently vide impugned notification, amendment was made in Departmental Service Rules, whereby those candidates would be eligible for promotion, who were serving in the District where the vacancies existed, in accordance with seniority list---Appellant who was B.A., B.Ed. challenged said notification in his appeal before Service Tribunal---Authorities by insertion of impugned notification had opened a back door for blue eye-chaps to get rapid promotion inspite of less experience and qualification---Amendment in rule having implication of affecting terms and conditions of civil servant, would affect interests of any civil servant; and the constitutionality, legality and vires of such amendment could be competently adjudicated by Service Tribunal---Tribunal was competent to strike down such an amendment, which had affected the fundamental rights of civil servant---When legislature conferred power on Government to frame rules, it was expected that such power would be used only bona fide, in a responsible sprit and in the interest of general public---In the present case amendment in Service Rules seemed to be unreasonable, in bad faith and misconstruction of enabling Act---Impugned condition in the notification was not only unreasonable, but was also uncertain, repugnant to the enactment and was also violation of the object and reasons of the enactment---Impugned notification, was declared ultra vires and was deleted, in circumstances.

(b) Balochistan Service Tribunals Act (V of 1974)---

----Ss. 4 & 5---Powers and jurisdiction of Service Tribunals---Civil servant, if was aggrieved by a final order, whether original or appellate, passed by Departmental Authority in respect of his service terms and conditions his remedy, was by way of an appeal before the Service Tribunal, even where the case involved vires of particular departmental Service Rule---If statutory rule or a notification, adversely affected the terms and conditions of a civil servant, same could be treated as an order in terms of S.4(1) of Balochistan Service Tribunals Act, 1974 for filing appeal before Service Tribunal---Constitutional issues, in such circumstances, could be taken and dealt with by the Service Tribunal, in exercise of its exclusive jurisdiction---Service Tribunal under S.5 of Balochistan Service Tribunals Act, 1974, was deemed to be a civil court for the purpose of deciding any appeal before it with all powers under Code of Civil Procedure---Like any other civil court the Tribunal had the jurisdiction to examine, whether or not a law was void by reason of the conflict with the statute, fundament rights, or otherwise was ultra vires or was mala fide.

(c) Interpretation of statutes---

----If subordinate legislation was directly repugnant to the general purpose of the Act, which authorized it, or was repugnant to any settled and well established principle of statute, it was ultra vires.

Nassebullah Tareen for Appellant.

Naseer Ahmed Bangulzai, Addl. A.-G. for Respondents.

Date of hearing: 23rd September, 2010.

2012 P L C (C.S.) 1311

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar and Jamal Khan Mandokhail, JJ

JAMAL-UD-DIN

Versus

CHIEF JUSTICE, BALOCHISTAN HIGH COURT through Registrar

Service Appeal No.1 of 2010, decided on 7th May, 2012.

Balochistan Civil Servants (Appeal) Rules, 1983---

----R. 5---Balochistan Civil Servants (Efficiency and Disciplinary) Rules, 1992, R.14---Reversion---Departmental representation---Limitation---Appellant had challenged the notification whereby he was reverted from the post of Senior Civil Judge to the post of Judicial Magistrate on the ground that he had no knowledge of the proceedings against him and he had been condemned unheard---Burden of proof---Departmental representation submitted by the appellant was refused on the ground that it had been filed beyond the prescribed period---Validity---Period provided for submitting a representation/departmental appeal to the Departmental Authority was sixty (60) days as per Balochistan Civil Servants (Appeal) Rules, 1983---Appellant's application, after the exclusion of the provided period of sixty days, was submitted five months beyond the said provided period---­Appellant had to show reasonable cause on basis of which the delay so occurred could be condoned; he had only taken the plea that he had no knowledge about the impugned orders however, the burden was exclusively on him to establish his respective plea---Contents of the appellant's representation stated no reason for the delay---Contradictory stand had been taken by the appellant on the date of him acquiring knowledge of impugned orders---Representation filed by the appellant was beyond the prescribed period and the delay was without any reasonable cause or any ground for condonation of delay---Appeal was dismissed.

Shamsuddin for Petitioner.

Azizullah Khilji, A.A.-G. for Respondent.

Date of hearing: 10th November, 2011.

2012 P L C (C.S.) 1450

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar and Muhammad Noor Meskanzai, JJ

SAID MUHAMMAD and another

versus

CHIEF SECRETARY, BALOCHISTAN, QUETTA and another

Constitutional Petition No.691 of 2008, decided on 28th June, 2012.

Provincial Employees Group Insurance Ordinance (Balochistan) (XII of 2007)---

----S. 14--- Constitution of Pakistan, Art.199--- Constitutional petition---Civil service---Group Insurance, payment of contribution to employees upon retirement---Scope---Petitioners, inter alia, impugned clause of a notification issued subsequent to the promulgation of the Provincial Employees Group Insurance Ordinance (Balochistan), 2007 whereby it was specified that employees who retired between 1-7-2007 and 21-12-2008 would be paid the actual amount of their contribution to the group insurance plus a reasonable increase---Contention of the petitioners was that there was no distinction between old and newly retired employees in the impugned clause and having retired before 1-7-2007; they were entitled to be paid their contribution to the group insurance as a right since it had been deducted from their own pay---Validity---Said clause of the notification was sub judice before the Supreme Court and High Court declined to give findings to that extent---Impugned notification, otherwise, only described enhancement of assured sum to employees and therefore had to be read with S.14 and Schedule of the Ordinance---Petitioners had failed to question the Provincial Employees Group Insurance Ordinance (Balochistan), 2007 which had an overriding effect on other laws, rules, notifications etc.---Impugned notification, therefore, was no longer in the field---Petitioners, in view of the state of facts, and not having challenged the Ordinance, had no case---Constitutional petitions were dismissed, in circumstances.

Muhammad Aslam Chishti for Petitioner No.1.

Rahim Ullah Shah Abdullahzai, Advocate, Petitioner No.2 in person.

Amanullah Tareen, Addl. A.-G. for Respondents.

Date of hearing: 15th December, 2011.

2012 P L C (C.S.) 1530

[Balochistan High Court]

Before Mrs. Syeda Tahira Safdar, J

MUHAMMAD HASSAN BALOCH

versus

DIRECTOR, MANPOWER TRAINING and another

Civil Revision No.366 of 2010, decided on 11th September, 2012.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Civil service---Suit for declaration and permanent injunction--- Official residence--- Entitlement-- Bifurcation of department---Plaintiff was serving in Labour and Manpower Department and was allotted official accommodation but after bifurcation of department, authorities: cancelled the allotment---Validity---On bifurcation of department, premises vested with one department and allottee belonged to the other one but such bifurcation did not change status of a lawful allottee automatically---Authorities had to adopt legal course to get vacant possession of such premises without effecting right of either of the parties, therefore, calling for evidence would not change the result---Authorities were owners and could not be restrained from getting vacant possession of residential accommodation or making allotment of the same but in each case action taken or order made should be in conformity with law---High Court, in exercise of revisional jurisdiction, declared that during subsistence of allotment, plaintiff was lawful allottee of premises in question, therefore, could not be evicted except with due course of law---High Court further declared that letter directing plaintiff to hand over vacant possession of premises and allotment order in favour of defendant were of no legal effect and were set aside---Revision was allowed accordingly.

H. Shakeel Ahmed for Petitioner.

Amanullah Tareen, Addl. A.-G. are! Wali Muhammad, Deputy

Director Manpower Training Department and Muhammad Qahir Shah for Respondent No.2.

Date of hearing: 18th July, 2012.

2012 P L C (C.S.) 627

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Khan Ghalzai, Member-I and Muhammad Anwar Khan, Member-II

SADDAR-UD-DIN

Versus

GOVERNMENT OF BALOCHISTAN through Secretary, Communication and Works Department Quetta and another

S.A. No.71 of 2010, decided on 10th August, 2010.

(a) Balochistan Civil Servants Act (IX of 1974)---

----S. 17---Balochistan Service Tribunals Act (V of 1974), S.4---Fundamental Rules, F.R. No.53---Salaries, entitlement to---Appellant was appointed in the civil works Directorate as Junior Engineer---Subsequently when said Directorate was merged into Communication and Works Department, appellant submitted his arrival report to Secretary, Communication and Works Department---Appellant was implicated in criminal cases and after his release on bail, he was caught by serious disease of cancer and on account of that he was unable to draw his salaries---Authorities had failed to release salaries of the appellant---Validity---Record had revealed that after arrest of appellant, enquiry was ordered by the then Chief Secretary and Enquiry Committee was constituted---In spite of inquiry order no concrete steps had been taken on the pretext that whereabouts of the appellant was not known---If whereabouts of the appellant were not known, to the Enquiry Committee or to the concerned department, publication could have been made in newspaper as envisaged under the provisions of Efficiency and Discipline Rules, 1992---Appellant remained in judicial custody for a long period and he could have been served through Jail Authorities for initiating departmental proceedings---Appellant who was government servant and was under suspension, was entitled for all the benefits under F.R. 53 of Fundamental Rules---Authorities were directed to make the payment of the salaries to the appellant in circumstances.

(b) Civil service---

----Departmental and criminal proceedings---Departmental and criminal proceedings were entirely different---One related to the enforcement of criminal liability and the other was concerned with the service discipline.

Amanullah Kanrani for Appellant.

Naseer Ahmad Bangulzai, A.A.-G. and Qasim C&W Representative for Respondents.

Date of hearing: 3rd August, 2010.

2012 P L C (C.S.) 648

[Balochistan Service Tribunal]

Before Muhammad Hashim Khan Kakar, Chairman, Muhammad Naeem Khan Ghalzai and Muhammad Anwar Khan, Members

SHAZIA AZEEM

Versus

GOVERNMENT OF BALOCHISTAN through Secretary Education Department, Quetta and 2 others

S.A. No.150 of 2010, decided on 25th November, 2010.

Balochistan Civil Servants Act (IX of 1974)---

----S. 10---Balochistan Service Tribunals Act (V of 1974), S.4---Transfer---Appellant who was appointed as SST (B-16) and was posted at place 'M', was transferred and posted as A.D.E.O. at place 'C'---Appellant impugned said transfer alleging that it was an outcome of political pressure which smacked mala fide---Directives and recommendation letters issued by the Chief Minister, a Senator and Provincial Minister respectively would show that the impugned order was the out come of political pressure---Question of transfer/posting under S.10 of Balochistan Civil Servants Act, 1974, fell within the domain of competent authority, but such discretion must not be exercised in an arbitrary and fanciful manner---Discretion had to be exercised judiciously and in accordance with settled norms of justice, equity and fair play---Government was required/duty bound to exercise the discretion keeping in view the nature of duties and requisite capability in a fair and impartial manner and there should be no extraneous consideration---If the transfer order was mala fide or in violation of settled law for extraneous considerations to accommodate some blue eyed person, would squarely fall within the domain of Service Tribunal---Impugned order was set aside, in circumstances.

Manzoor Ahmed Rehmani for Appellant.

A.A.-G. for Respondents.

Date of hearing: 27th October, 2010.

2012 P L C (C.S.) 1

[Punjab Service Tribunal]

Before Justice (R) Muhammad Jehangir Arshad Chairman

MUHAMMAD ASIF CHATHA

Versus

CHIEF SECRETARY, GOVERNMENT OF PUNJAB, LAHORE and 27 others

Service Appeals Nos.2933, 2934, 2935, 2936, 2939, 2941, 2942, 2943, 505, of 2005, 441, 500 to 504 and 591 of 2006 decided on 25th November, 2011.

(a) Punjab Civil Servants Act (VIII of 1974)---

----S. 8---Punjab Service Tribunals Act (IX of 1974), S.4---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R.13---Promotion on officiating basis---Appellants who possessed B.Sc. Engineering degree, initially were promoted between the years 1995-1998 to the posts of Assistant Engineers in BS-17 on officiating basis, whereas respondents were promoted in the year 2001 to said posts on regular basis---Appellants challenged such promotion of respondents in constitutional petition and High Court directed the competent Authority to decide the controversy in accordance with law after hearing the parties---Supreme Court upheld order of High Court and remanded case to competent Authority and competent Authority declared promotion of appellants as regular promotion with effect from date of their officiating promotion---Said order of competent Authority was assailed in appeal by the respondents before Service Tribunal and Tribunal set aside order of competent Authority with direction to take fresh hearing for determination of the dispute---Competent Authority ordered that there were no basis for considering the officiating promotion of appellants to be regular promotion and appellants could not be considered as regular promotees---Appellants had filed appeals before the Tribunal---Since 1995 to 2002, three seniority lists were issued and appellants, never challenged the said seniority lists---Promotion of appellants being in accordance with the provisions contained in R.13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, unless same was regularized through proper channel, appellants could not be deemed to be promoted on regular basis---In terms of said Rule 13 of Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 officiating promotion neither would confer any right of promotion on regular basis, nor a civil servant could claim any promotion on regular basis because of his officiating promotion---Contention of counsel for the appellants, that promotion of the appellants in fact through order was on regular basis and that the condition of promotion on acting charge basis was either superfluous or without legal justification was repelled---Promotion of appellants on acting charge basis was quite lawful and in line with provisions contained in R.13 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974---Appellants, in circumstances, could not ask for declaration that their promotion be considered on regular basis---Respondents, who were senior to the appellants, were also holding requisite qualifications at relevant time for promotion as S.D.O. (BS-17), they were validly considered/promoted on regular basis.

1993 SCMR 609; 1996 PLC (C.S.) 677 (SC); 1981 PLC (C.S.) 731; 1982 SCMR 408; 1983 PLC (C.S.) 247; 2000 SCMR 1546; 1985 SCMR 1158; 1990 SCMR 1623; PLD 1990 SC 725; 1985 SCMR 699; 2004 SCMR 630, 2005 SCMR 716; 2003 PLC (C.S.) 1357; 2011 SCMR 676; 2009 PLC (C.S.) 527; 1998 SCMR 215; 2010 SCMR 1301; Dr. S.M. Inkisar Ali v. Government of Sindh and others 2011 SCMR 121; Jafar Ali Akhtar Yousafzai v. Islamic Republic of Pakistan and another PLD 1970 Quetta 115; PLD 1995 SC 701; 2010 SCMR 450; 1995 SCMR 1229; Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882; Dr. Anwar Ali Sahto v. Federation of Pakistan and others PLD 2002 SC 101; 2006 SCMR 453; 2010 SCMR 676 and PLD 1996 SC 845 ref.

Tariq Aziz ud Din and others in re:- Human Rights's case 2010 SCMR 1301; Dr. S.M. Inkisar Ali v. Government of Sindh and others 2011 SCR 121; Altaf Ahmad and others v. Secretary to Government of Punjab, Irrigation Department, Lahore and others (C.P. No.1583 of 1998); Raja Zafar Mehmood v. Director General Agriculture (Field), Punjab, Lahore and others Appeal No.4288 of 2010; 2003 PLC (C.S.) 212; 1985 PLC (C.S.) 26; PLD 1991 SC 1118; PLD 2003 SC 175 and 1995 SCMR 1229 rel.

(b) Punjab Civil Servants Act (VIII of 1974)---

----Ss. 8 & 21---Promotion---Right of appeal---Question of limitation--- Service Tribunal being the only forum for determination of terms and conditions of a civil servant before approaching that Tribunal, civil servant had to satisfy the legal requirements, especially question of limitation with reference to S.21 of Punjab Civil Servants Act, 1974.

Qasim Wasti and others v. Secretary to Government of Punjab, Revenue Department, Board of Revenue, Lahore and others 2009 SCMR 1204=2011 PLC (C.S.) 997 rel.

Hafiz Tariq Nasim for Appellants (in Service Appeals Nos.2933, 2934, 2935, 2936, 2939, 2940, 2941, 2942 and 2943 of 2005).

Zahid Hussain Khan for Appellant (in Service Appeals No.2951 of 2005).

Masud Ahmad Riaz for Appellants (in Service Appeals Nos.441, 500, 501, 502, 503, 504, 505(?) and 591 of 2006), Humayun Akhtar Sahi, Dy. District Attorney for Respondents.

Dr. A. Baist for private Respondents Nos.3 to 19.

Mrs. Rizwana Anjum Mufti for private Respondents Nos.20 to 22 and 24 to 28.

Respondent No.23 in person.

Khalid Saleem, Law Officer on behalf of C&W Department, Lahore.

Dates of hearing: 6th, 17th, 18th, 19th and 20th October, 2011.

2012 P L C (C.S.) 68

[Punjab Service Tribunal]

Before Justice (R) Muhammad Jahangir Arshad (Chairman)

SHAFIQUE AHMAD CHAUDHRY

Versus

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, LAHORE and another

Service Appeals Nos.1387, 1400, 1462, 1492 to 1496 and 1447 to 1458 of 2010, decided on 21st February, 2011.

(a) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 5, 6 & 10---Imposition of penalties---Appellants serving as Store Keepers, were proceeded against departmentally being guilty of misconduct and negligent in the performance of their duties under Punjab Removal from Service (Special Powers) Ordinance, 2000---Allegation against the appellants was that they incurred huge and excessive expenditure during the financial year without any lawful authority and proper control/check which had resulted in misappropriation and embezzlement---Inquiry Committee duly constituted, after completion of probe submitted its report and recommended penalties to be imposed upon appellants---Competent Authority extended penalty of reduction to the initial stage in pay scale along with recovery of 1/8th of the loss, despite the fact that none of the appellants were either deputed for the job of excavation, operation of excavation machine, checking of quality and quantity of purchased material---Job of appellants was only to enter the purchased material in the goods receipt sheet as well as stock register---Huge and excessive expenditure during the disputed financial year without any lawful authority was neither the function of store keepers to purchase spare parts nor same were purchased by the appellants without calling tenders, but despite that Inquiry Committee as well as competent Authority held the appellants guilty of said charges---While holding appellants guilty of misappropriation, neither the Inquiry Committee nor the competent Authority looked into the glaring omission about any evidence to that effect---Departmental Representative as well as Deputy District Attorney, had conceded that the only evidence on the question of financial loss to the public exchequer was the statement prepared by Executive Engineer without any corroborative evidence---Such like evidence could not be considered as a valid evidence---None of the appellants, in circumstances, could be held responsible for the acts committed by their high-ups---No evidence was on record to prove that any of the appellants made entry without verifying vouchers/receipts, regarding purchase of relevant material---Charges against the appellants/store keepers, were not only irrelevant, but also not proved through sufficient evidence---No allegation was available against the appellants that either they themselves purchased the material or they were found guilty of embezzlement as alleged by competent Authority---Appellants were exonerated from the charges levelled against them, in circumstances.

(b) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 5, 6 & 10---Constitution of Pakistan, Arts.4 & 25---Imposition of penalty---Discriminatory penalty/punishment---Appellant along with two other Executive Engineers, was proceeded against on the charge of inefficiency, misconduct and corruption arising out of committing financial/codal irregularities, under provision of Punjab Removal from Service (Special Powers) Ordinance, 2000---All three persons, after completion of inquiry were recommended by the Inquiry Officer for dismissal from service as well as recovery of 1/4th of financial loss---Competent authority on receipt of inquiry report and after affording opportunity of hearing through final show-cause notice imposed penalty of withholding of promotion for a period of three years along with recovery of 1/4th of loss upon the appellant---Through a separate order, despite holding other two persons guilty of the charges of negligence and loose administrative control etc., imposed penalty of stoppage of two annual increments only upon them---No special reason or justification was given for imposing different penalties upon the appellant as well as on said two persons of the same status---Appellant was extended discriminatory treatment by the authorities in the matter of punishment which was violation of Arts.4 & 25 of the Constitution---Counsel for the appellant had successfully made out a case of discrimination in the matter of punishment---Penalty of recovery of amount imposed on the appellant being without evidence, same was set aside, whereas in line with the order of competent Authority imposing penalty as stoppage of annual increment for two years as corrected by Chief Secretary, being appellate authority in his order, the penalty of withholding of promotion for three years, as imposed on the appellant, was converted into penalty of withholding of increment for two years, without cumulative effect.

(c) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 5, 6 & 10---Constitution of Pakistan, Arts.4 & 25---Imposition of penalties---Discriminatory penalty/punishment---Four appellants serving as 'Sub-Divisional Officers' were proceeded against on charges of inefficiency, misconduct and corruption under Punjab Removal from Service (Special Powers) Ordinance, 2000---Inquiry Officer, after completion of inquiry, recommended for imposition of penalties of dismissal from service as well as recovery of 1/4th financial loss---Competent authority after affording opportunity of hearing, through final show-cause notice, imposed various penalties on three appellants, but through a separate order despite holding one of the appellants, equally guilty of the charges, imposed penalty of stoppage of two annual increments only upon him---Neither any special reason nor any justification was given by the competent Authority to have imposed different penalties upon three appellants and on said fourth appellant after holding all of them equally guilty of negligent---Discriminatory treatment by the competent Authority in the matter of punishment, was in violation of provisions of Arts.4 & 25 of the Constitution---No evidence was on record to attribute the charge of causing financial loss to public exchequer, except statement prepared by Executive Engineer, who neither appeared in the court nor was subjected to cross-examination---Counsel for the appellants had successfully made out a case of discrimination in the matter of punishment---Penalty of recovery of amount imposed on the appellants being without evidence, same was set aside; while in line with the order of competent Authority imposing penalty of stoppage of annual increment for two years as corrected by the Chief Secretary being Appellate Authority in his order, the penalty of withholding of promotion/reduction in initial stage, imposed on the appellants, was converted into the penalty of withholding of increment of two years, without cumulative effect---Period of posting of appellant being only one day, canons of justice demanded the penalty as imposed on him by the competent Authority and maintained by Appellate Authority, was reduced into 'censure' only.

(d) Punjab Removal from Service (Special Powers) Ordinance (IV of 2000)---

----Ss. 3, 5, 6 & 10---Constitution of Pakistan, Arts.4 & 25---Imposition of penalty---Discriminatory penalty/punishment---Eleven appellants, serving as 'Sub-Engineers' along with another, were proceeded against under Punjab Removal from Service (Special Powers) Ordinance, 2000, on the charge of inefficiency, misconduct and corruption arising out of committing financial/codal irregularities---Appellants, after completion of inquiry, were recommended by the Inquiry Officer for imposition of penalty of dismissal from service as well as recovery of 1/4th of the financial loss---Competent Authority on receipt of said report and after affording opportunity of hearing to the appellants, through final show-cause notice imposed various penalties upon said eleven appellants, but through separate orders, despite holding one appellant equally guilty of the charges, imposed penalty of stoppage of two annual increments only upon him---Neither any special reason, nor justification was given by the competent Authority to have imposed different penalties upon the appellant as well as on the other one, after holding them equally guilty of negligence etc.---Appellants, in circumstances, were extended discriminatory treatment by the competent Authority in the matter of punishment, which was in violation of Arts.4 and 25 of the Constitution---No evidence was on record to attribute the charge of causing financial loss to the public exchequer, except the statement prepared by Executive Engineer who neither appeared in the court nor was subjected to cross-examination---Penalty of causing financial loss was also imposed in discriminatory manner and without considering the length of posting of each appellant, during the disputed period---Appellants having succeeded to make out a case of discrimination, in the matter of punishment, as penalty of recovery of amount imposed on the appellant was without evidence, was set aside; while in line with the order of competent Authority imposing penalty of stoppage of annual increments for two years as corrected by the Chief Secretary, being Appellate Authority, penalty of withholding of promotion/reduction to initial stage, imposed on appellants, was converted into penalty of withholding of increments for two years without cumulative effect.

2009 SCMR 187 and 2005 SCMR 445 rel.

Pervaiz Inayat Malik for Appellants (in Appeal No.1387 of 2010).

Mian Inam-ul-Haq for Appellant (in Appeal No.1400 of 2010).

Masud Ahmad Riaz for Appellants (in Appeals Nos.1462, 1492, 1493, 1494, 1495 and 1496 of 2010).

Asif Nazir Awan for Appellants (in Appeals Nos.1447, 1448, 1449, 1450, 1451, 1452 and 1457 of 2010).

Muhammad Yasin Bhatti for Appellant (in Appeal No.1458 of 2010).

Babar Murtaza Khan for Appellants (in Appeals Nos.1453, 1454, 1455 and 1456 of 2010).

Humayun Akhtar Sahi, Deputy District Attorney and Muhammad Aslam Sipra, Deputy Secretary, I&P Department, Lahore for Respondents.

Date of hearing: 21st February, 2011.

2012 P L C (C.S.) 172

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Ghulam Rabbani, JJ

TRUSTEES OF THE PORT OF KARACHI

Versus

SAQIB SAMDANI

Civil Petition No. 19-K of 2011, decided on 14th June, 2011.

(On appeal from the judgment dated 7-10-2010 in Appeal No.747(K)CS/2000, passed by the Federal. Service Tribunal, Karachi).

Service Tribunals Act (LXX of 1973)---

----S. 4---Contract employee---Reinstatment in service---Vested right---Scope---Respondent was employed on a contract of one year, whereafter, he was terminated from service---Service Tribunal allowed the appeal of respondent and reinstated him in service---Validity---Respondent was in employment on contract basis, hence no vested right was created in his favour for reinstatement in service---Respondent was not appointed as regular employee against any particular quota to give him a valid cause pf action---Judgment passed by Service Tribunal was silent that termination of service of respondent violated any of his rights, therefore, his reinstatement under the judgment passed by Service Tribunal was not validly ordered---Supreme Court set aside the judgment passed by Service Tribunal---Appeal was allowed.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Karachi Port Trust through Chairman Board of Trustee v. Altaf Ahmed and another 1996 SCMR 1205 and Chairman, Pakistan Broadcasting Corporation, Islamabad v. -Nasir Ahmad and others 1995 SCMR 1593 distinguished.

Khale.eq Ahmed, Advocate Supreme Court for Petitioner.

M. Farogh Nasim, Advocate Supreme Court and K.A.

Wahab, Advocate-on-Record for Respondent.

Date of hearing: 14th June, 2011.

2012 P L C (C.S.) 218

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Ghulam Rabbani, JJ

STATE BANK OF PAKISTAN through Governor and another

Versus

IMTIAZ ALI KHAN and others

Civil Appeal No. 581 of 2011, decided on 19th October, 2011.

(On appeal from the judgment/order dated 7-12-2010 passed by High Court of Sindh, Karachi in Constitutional Petition No. D-1684 of 2006).

(a) State Bank of Pakistan Staff Regulations, 1993--

----Regln. 19---State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980, Reglns. 2(i) & 4---State Bank of Pakistan Act (XXXIII of 1956), S. 54(1) [as amended by State Bank of Pakistan (Amendment) Act (II of 1994)]---Constitution of Pakistan, Arts. 185(3) & 199---Voluntary Golden Handshake Scheme, 1997 introduced by State Bank of Pakistan vide Circular No. 9 dated 23-10-1997 for its structuring with a view to improve its efficiency and performance by offering a voluntary exit to its surplus employees upto 22-11-1997 on payment of retirement benefits available to them under existing Rules and Regulations in addition to other normal, benefits as compensation---Bank accepted option of 1400 employees of different ranks and paid them amount of their compensation---Appeals filed after six years by some employees claiming pensionary benefits returned by Service Tribunal---Constitutional petition filed by petitioners accepted by High Court while directing Bank to pay commutation of their gross-pension irrespective of such Scheme---Validity---Supreme Court granted leave to appeal, inter alia, to examine as to whether under such Scheme, employees who had served the Bank for a period of less than 25. years and more than 10 years on having opted such Scheme were paid compensation towards pensionary benefits equivalent to 50% commutation of Gross Pension as full and final settlement as a "Special Case" without creating any precedent, could still claim to be entitled to payment of pension on monthly basis.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 ref.

(b) State Bank of Pakistan Staff Regulations, 1993--

----Regln. 19---State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980, Reglns 2(i) & 4---State Bank of Pakistan Act (XXXIII of 1956), S. 54(1) [as amended by State Bank of Pakistan (Amendment) Act (II of 1994)] --Constitution of Pakistan, Arts 185(3) & 199---Voluntary Golden Handshake Scheme, 1997 introduced by State Bank of Pakistan vide Circular No. 9 dated 23-10-1997 for its structuring with a view to improve its efficiency and performance by offering a voluntary exit to its surplus employees upto 22-11-1997 on Payment of retirement benefits available to them under existing Regulations in addition to other normal benefits as compensation as full and final settlement---Option of 1400 employees of different ranks accepted by Bank on payment of compensation---Appeal before Service Tribunal after six years by some employees claiming pensionary benefits on ground that by virtue of exercise of such option, their services were terminated and they stood retired---Tribunal returned appeal for its presentation before the competent forum---Constitutional petition filed by petitioners was accepted by High Court while directing the Bank to pay commutation of their gross pension irrespective of such Scheme---Bank's plea was that petitioners having voluntarily opted to leave the Bank on acceptance of such Scheme were not entitled to gross pension, which was payable to an employee after completing service of ten years or above=--Validity---Such Scheme was voluntary and was not imposed upon employees and none was compelled or under duress, pressure or coercion to opt for same---Petitioners had been allowed four weeks' time to ponder over such Scheme and before they exercised their option, they were circulated a print=out copy showing approximate benefit payable to them on its acceptance---Word "retirement" as per State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980 would mean retirement of an officer under State Bank of Pakistan Staff Regulations, 1993, meaning thereby that regular retirement of an employee would be either after completion of 25 years service or on attaining of 60 years entitling him to pensionary benefits---According to terms of such Scheme, employees having opted therefor would not be entitled to pensionary benefits, rather they would be paid compensation towards pensionary benefits equivalent to 50% commutation of gross pension, which would be a full and final settlement as a special case---Petitioners had not completed 25 years of service at time of exercising such ° option---Had petitioner not opted for such Scheme, but had claimed pension on basis of rendering more than 10 years service, then they would have been entitled thereto for same being a regular retirement under the Regulations---Petitioners had not retired from service by application of Regulations, 1980 nor under Regulations, 1993, but they had left service voluntarily after accepting such Scheme, which would govern their cases---Petitioner had remained silent for more than six years after accepting such Scheme without any objection---Petitioners had failed to prove/show infringement of any right and were guilty of laches in approaching legal forum for redressal of their alleged grievance---Supreme Court set aside impugned judgment in circumstances.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602; State Bank. of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213; Muhammad Idrees v. Agriculture 'Development Bank of Pakistan and others PLD 2007 SC 681; State Bank of Pakistan v. Muhammad Aslam Khan Civil Appeal No.976-1000 of 2009; Muhammad Masihuzzaman v. Federation of Pakistan PLD 1992 SC 825; Muhammad Ahmed v. Government of Sindh 1999 SCMR 255; Muhammad Anwar Siddiqui v. Lahore Development Authority 2009 SCMR 177; S.A. Jamil v. Secretary to the Government of the Punjab 2005 SCMR 126; Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi PLD 1984 SC 170 and Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education 2004 SCMR 35 ref.

(c) Words and phrases--

--"Termination"-Definition.

Judicial Dictionary by K.J. Aiyar 13th Edition ref

(d) Civil Procedure Code (V of 1908)---

---S. 11 & O. VII, Rr. 1(g), 8---Failure of a party to ask for all relief to which he was entitled---Effect---Such relief, even if available and not asked for, could not be claimed by filing a subsequent legal proceedings as same would fall' within mischief of constructive res judicata---Illustration.

United Bank Limited v. Shamim Ahmed Khan PLD 1999 SC 990 and Akram Zahoor v. Federation of Pakistan 2000 SCMR 1232 ref

(e) Laches---

----Doctrine of---Scope---Party having an enforceable right, if failed to exercise/enforce the same within time specified' by law, could not enforce on account of laches---Principles.

Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement, if it is found by the court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party, but he cannot enforce it. The limitation is examined by the Limitation Act, 1908 or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievance though remains, but it cannot be redressed because if on the one hand there was a right with a party which he could have enforced against the other, but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.

(f) Equity---

---Delay would defeat equity---Equity would aid vigilant and not an indolent. [p. 245] T

Jawad Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472; Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n; Snell's Equity by John Meghee 12th Edition at page 35; Member (S&R)/Chief Settlement Commissioner v. Ashfaque Ali PLD 2003 SC 132; S.A. Jameel v. Secretary to the Government of the Punjab 2005 SCMR 126; Pakistan Post Office v. Settlement Commissioner 1987 SCMR 1119; John Objobo Agbeyegbe v. Festus Makene Ikomi PLD 1953 PC 19 and Erlanger v. New Sombrero Phosphate Company 1878 LR 3 AC at page 1279 rel.

Khalid Anwar, Senior Advocate Supreme Court for Appellants.

Abdur Rahim Bhatti, Senior Advocate Supreme Court for Respondents Nos. 1 132, 134 and 137 202

Sardar Asmatullah, Senior Advocate Supreme Court for Respondent No.136.

Atif Hayat Respondent No.133 in person.

Ms. Anjum Naz Respondent No.135 in person.

Date of hearing: 27th September, 2011.

2012 P L C (C.S.) 263

[Supreme Court of Pakistan]

Present: Khilji Arif Hussain and Amir Hani Muslim; JJ

PROVINCE OF SINDH through Chief Secretary, Sindh, Sindh Secretariat and another

Versus

PROSECUTOR-GENERAL SINDH, CRIMINAL PROSECUTION DEPARTMENT and others

Civil Petition No. 727-K of 2011, decided on 8th December, 2011.

(On appeal from judgment dated 3-6-2011 of the High Court of Sindh, Circuit Court, Hyderabad, passed in C.P.D. No.587 of 2011).

(a) Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act (IX of 2010)---

----Ss. 5(2)(3) & 6(1)---Constitution of Pakistan, Art. 185(3)---Transfer and posting---Prosecutor-General, powers of---Scope---Respondents were officials of Sindh Criminal Prosecution Service who assailed their transfer and posting orders issued by the Prosecutor-General---High Court dismissed the petition filed by respondents and maintained the posting orders---Validity---Power of transfer and posting was purposely retained with Prosecutor-General, who was otherwise head of the service under the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009, as he was better placed to make informed decisions vis-a-vis transfer of members of the Service as opposed to Special Secretary, Law and Justice Department---Legislature keeping in view to achieve objects of independence of prosecution service, had, therefore, entrusted power of control, administration and supervision to Prosecutor-General by making him head of the service with sole object to effectuate his administration over the service--Entrustment of such powers essentially include power to "transfer" and "posting" of members of the service, as he was the best judge to post members according to their experience, expertise and professional knowledge---Inbuilt scheme existed whereby powers of transfer and posting were conferred upon the Prosecutor-General by using expression "administration" "control" and "Head of Service" under Ss.5(2), 5(3) & 6(1) of Sindh Criminal Prosecution Service (Constitution, Functions and - Powers) Act, 2009, respectively---Intention of Legislature was to make the Prosecutor-General responsible for administration and control of the service and words "control" would mean that he had the power to transfer and post his subordinates in terms of Ss. 5 and 6(1) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2009---Supreme Court declined to interfere in the judgment passed by High Court---Leave to appeal was refused.

State of Assam v. Ranga Muhammad and others AIR 1967 SC 903; Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. PLD 1984 Lah. 69; Sharif Faridi v. Federation of Pakistan and another PLD 1989 Kar. 404; M.H. Mirza v. Federation of Pakistan 1994 SCMR 1024; Zia Ghafoor Piracha .v. Chairman Board of Intermediate and Secondary Education, Rawalpindi 2004 SCMR 35; Abdul Haq v. Province of Sindh PLD 2000 Kar. 224; Abdul Haque Indhar v. Province of Sindh 2000 SCMR 907; Amanullah Khan Yousufzai v. Federation of Pakistan PLD 2011 Kar. 451 and Muhammad Ali Satakzai v. Appointing Authority through Registrar Balochistan High Court 2011 SCMR 2011 ref.

(b) Words and phrases---

---- `Administration '-Meaning.

Black's Law Dictionary and Chambers 21st Century Dictionary rel.

(c) Words and phrases--

'Control'---Meaning

Black's Law Dictionary and Ballentine's Law Dictionary rel

(d) Words and phrases---

---- `Supervise'---Meaning.

Black's Law Dictionary and Ballentine's Law Dictionary rel.

(e) Words and phrases---

--_Administration', 'control' and supervision'---Connotation---Phrase "administration, control and supervision" means management or. executive duties relating to an institution---In order to perform duties of management effectively, head of institution is required to be equipped with absolute powers to have control over the members of the-organization.

State of West Bengal v. Nripendra Nath AIR 1966 SC 447; Corporation of the City of Nagpur v. Ramchandra G. Modal and others AIR 1984 SC 636 and Mehram Ali v. Federation of Pakistan PLD 1998 SC 1445 rel.

(f) Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act (IX of 2010)---

----Ss. 14, 16(2) & 18---Sindh Civil Servants Act (XIV of 1973), S.10---Sindh Government Rules of Business, 1986, Schedule-I, Sr. No.21, Col.4---Members of Prosecution service---Status---Members of the service are public servants as defined in S. 16(2) of Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, 2010, and they are not civil servants---Provision of S.18 of Sindh Criminal Prosecution Service (Constitution, Functions and, Powers) Act, 2010 is a non-obstante clause which excludes application of all other laws including Sindh Civil Servants Act, 1973, rules framed thereunder and Sindh Government Rules of Business, 1986. [p. 275] G & H

Abdul Fateh Malik, Additional A.-G., Sindh for Petitioners.

Abid S. Zubairi, Advocate Supreme Court for Respondent No. 1.

Khalid Javed Khan, Advocate Supreme Court and Mazhar Ali B. Chuhan, Advocate-on-Record for Respondent No.2.

Dates of hearing: 10th and 11th November, 2011.

2012 P L C (C.S.) 394

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C J., Tariq Parvez and Amir Hani Muslim, JJ

(Suo Motu action regarding VIOLATION OF PUBLIC PROCUREMENT RULES, 2004 in procurement loss of billions of Rupees of exchequer caused by National Insurance Company Ltd.): In the matter of

Suo Motu Case No.18 of 2010, decided on 8th August, 2011.

(a) Constitution of Pakistan---

----Art. 184(3)---Judicial review of administrative action---Scope---Civil service---Investigation of a financial scam by civil servant, who had obeyed the Supreme Court order and stood for the rule of law despite threats etc., advanced to him by the political figures and had shown his commitment to discharge his duties strictly in accordance with law had been suspended for no other reasons except to make the order of Supreme Court ineffective whereby the Investigation Agency was directed to cooperate with investigation team headed by the said civil servant but instead the team members were transferred---Competent authority has been vested with the discretion to pass administrative order but such discretion has to be exercised in accordance with law---In the present case, there were certain allegations against the civil servant (who was heading the investigation team) and a show-cause notice was issued which was replied by him, on the basis of material, without considering the reply filed by civil servant, the person who called for his explanation was not empowered for the same under Government Servants (Efficiency and Discipline) Rules, 1973 being in grade 21---Admittedly such notice for explanation of the civil servant was not issued under R.6, Government Servants (Efficiency and Discipline) Rules, 1973 for misconduct rather the same was issued to get his response about the allegations---Record showed that the order of suspension of said civil servant was issued by the person who was not competent as the verbal orders were obtained from the competent authority, later on, confirmed by the Principal Secretary to the Prime Minister (competent authority)---No incriminating material, admittedly was produced except a letter and even without considering the fact that whether reply was given or not---Held, Supreme Court, ordinarily does not intervene in the functioning of the Executive, but the court has been empowered, while exercising the powers of judicial review, to examine the administrative orders as well---Principles.

(b) Constitution of Pakistan---

----Art. 184 & 199---Judicial review of discretion and exercise of administrative or executive powers---Scope and principles.

Where a procedure has been provided for doing a thing in a particular manner that thing should be done in that manner and in no other way or it should not be done at all; indeed it impliedly prohibits doing of thing in any other manner; the compliance for such thing in no way could be either ignored or dispensed with.

In absence of any material available on record the competent authority has exercised the discretion. There are certain norms for exercise of discretion. The discretionary powers of the executive have to be exercised judicially and in reasonable manner. The authorities cannot be allowed to exercise discretion at their whims, sweet will or in an arbitrary manner; rather they are bound to act fairly, evenly and justly.

When it is said that something is to be done within the discretion of the authorities, it means that something is to be done according to the rules of reasons and justice, not according to private opinion, according to law and not humour. It is to be, not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to discharge of his office ought to confine himself.

If the act complained of is without jurisdiction or is in excess of authority conferred by statute or there is abuse or misuse of power, a court can interfere. In such an eventuality, mere fact that there is denial of allegation of mala fide or oblique motive or of its having taken into consideration improper or irrelevant matter does not preclude the court from enquiring into the truth of allegations levelled against the authority and granting appropriate relief to the aggrieved party.

The decision is unlawful if it is one to which no reasonable authority could have come.

The discretion enjoyed by the persons holding high offices should not be left to the good sense of individuals and presumption that person holding high office does not commit wrong is liable to be repelled.

Every arbitrary action, whether in the nature of legislative or administrative or quasi judicial exercise of power, is liable to attract the prohibition under the Constitution.

Court may look into the material on record, uphold the right of judicial review, on the basis of illegality in decision making process coupled with irrationality and perversity. If the administrative or judicial power has been exercised on non-consideration or non-application of mind to relevant factors, such exercise shall stand vitiated.

It is an unwritten rule of the law that whenever a decision-making function is entrusted to the subjective satisfaction of statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote.

The parameters of the court's power of judicial review of administrative or executive action or decision and the grounds on which the court can interfere with the same are well-settled. Indisputably, if the action or decision is perverse or is such that no reasonable body of persons, properly informed, could come to or has been arrived at by the authority misdirecting itself by adopting a wrong approach or has been influenced by irrelevant or extraneous matter the court would be justified in interfering with the same.

The exercise of constitutional powers by the High Court and the Supreme Court, under the relevant Articles, have been categorized as power of "judicial review". Every executive or administrative action of the State or other statutory or public bodies is open to judicial scrutiny and the High Court or the Supreme Court can, in exercise of the power of judicial review under the Constitution, quash the executive action or decision which is contrary to law or is violative of Fundamental Rights guaranteed by the Constitution. With the expanding horizon of Articles of the Constitution dealing with Fundamental Rights, every executive action of the Government or other public bodies, including Instrumentalities of the Government, or those which can be legally treated as "Authority", if arbitrary, unreasonable or contrary to law, is amenable to the writ jurisdiction of the Supreme Court or the High Courts and can be validly scrutinized on the touchstone of the constitutional mandates.

E.A. Evans v. Muhammad Ashraf PLD 1964 SC 536; Atta Muhammad Qureshi v. The Settlement Commissioner PLD 1971 SC 61; Muhammad Yousaf Khan v. Muhammad Ayub PLD 1972 Pesh. 151; Dost Muhammad v. Government of Balochistan PLD 1980 Quetta 1; Tariq Aziz-ud-Din: in re 2010 SCMR 1301; Abid Hussain v. PIAC 2005 PLC (C.S.) 1117; Abu Bakar Siddique v. Collector of Customs 2006 SCMR 705; Walayat Ali v. PIAC 1995 SCMR 650; Sharp v. Wakefield 1891 AC 173; Union of India v. Kuldeep Singh 2004 (2) SCC 590; State of U.P. v. Muhammad Nooh AIR 1958 SC 86; Pratap Singh v. State of Punjab AIR 1964 SC 72; Fashih Chaudhary v. D.G. Doordarshan (1989) 1 SCC 189; M.I. Builders (Pvt.) Ltd. v. Radhey Shyam (1999) 6 SCC 464; Delhi Transport Corporation v. D.T.C. Mazdoor Congress AIR 1991 SC 101; E.P.Royappa v. State of Tamil Nadu AIR 1974 SC 555; R.D. Shetty v. International Airport Authority (1979) 3 SCC 489; Maneka Gandhi v. Union of India (1978) 1 SCC 248; Ajay Hasia v. Khalid Mujib 1981(1) SCC 722; Shri Sitaram Sugar Co. Ltd. v. Union of India 1990 (3) SCC 223; State of NCT of Delhi and another v. Sanjeev alias Bittoo (2005) 5 SCC 181; Smt. Shalini Soni v. Union of India (1980) 4 SCC 544; Commissioner of Income Tax v. Mahindra AIR 1984 SC 1182 and Common Cause, A Regd. Society v. Union of India AIR 1999 SC 2979 ref.

(c) Constitution of Pakistan---

----Arts. 184 & 199---Civil service---Suspension of an officer pending enquiry---Object---Judicial review---Scope.

The object of suspending an officer from duty during the pendency of an inquiry is that he should not be allowed to tamper with documentary and oral evidence likely to be produced in his case. This object, can be achieved in a very short time and if the case is likely to take more time then the easiest way to avoid it is to transfer him to some other department, so that he may not be able to tamper with the evidence that may be produced against him. Undoubtedly under, the Service Rules there is ample power with the Government to suspend a government servant both as a measure of penalty and during the pendency of the departmental enquiry. But all actions taken under these rules must be based on the principles of natural justice, otherwise there was no need to frame them. The power of suspension, therefore, must be exercised in a reasonable and fair manner. The moment the effect of the exercise of such power is found to be unfair and unjust, the government servant, will be entitled to challenge it, and courts of law if satisfied that such orders are based on arbitrary exercise of power will not hesitate to set them aside as they will be in clear violation and breach of statutory rules.

Allauddin v. Chief Commission PLD 1959 Kar. 282 ref.

(d) Constitution of Pakistan---

----Arts. 184(3) & 187---Civil service---Suspension of a civil servant, investigating a case of corruption of huge amount belonging to people of Pakistan, during the pendency of the matter before Supreme Court---Said suspension was not legal and regular and was arbitrary vague and fanciful---When Supreme Court was already seized with the matter regarding the enforcement of fundamental rights in respect of corruption of amount belonging to the nation, court was obliged to exercise its jurisdiction under Art.184(3) read with Art.187 of the Constitution to examine the vires of the order of suspension and in given circumstances examination of the same in exercise of powers of judicial review was permissible---Supreme Court was not debarred to exercise jurisdiction for ensuring fair investigation of the cases with no other intention except to bring the accused to book who were involved in the cases of corruption which is menace against nation/society and during the course of commission of offence if prima facie they had looted the money and had also succeeded in taking same outside the country---Suspension of the officer, in circumstances, was coram non judice, not, sustainable in eye of law and the discretion by the competent authority had been exercised contrary to the settled principles of relevant law---Supreme Court, in view of circumstances, issued directions with regard to reinstatement of the official and ordered that he shall be deemed to have been on duty and carry out investigation of the cases and complete investigation of the cases expeditiously and ensure that public money sent abroad shall be brought back---No functionary of the government shall create hindrance in the investigation being conducted by the said officer; no action shall be taken against the said officer without prior approval of the Supreme Court; Investigation team, which had already been assisting the officer, would join him as team mates, unless he wants otherwise; and said officer shall be submitting fortnightly report about the progress of the investigation duly countersigned by the Director General of the Investigation Agency to the nominated Judge of the Supreme Court for perusal in chambers---Prima facie, interference had been made in the judicial functioning of Supreme Court as a result whereof not only the authority of Supreme Court had been eroded but at the same time the investigation of the case had come to stand still, no progress had been made and looted money, which had been taken outside the country was not likely to come back unless the investigation of the case was conducted seriously and government provided support to the prosecution instead of withdrawing its support---Suspension order of the officer was the result of political intervention in the affairs of Supreme Court and it required to be determined accordingly in view of facts and circumstances which also included pressurizing the said officer by the high-ups to dissociate him from the proceedings of the cases, as a follow up political expediency, which had been widely reported by the print media, coupled with propaganda on electronic media against judiciary by issuing advertisement---Private T.V. Channels might have declined to indulge in such campaign but the T.V. channels being operated commercially, prima facie, could not be blamed, however, the persons or a specific group who had provided finances for this purpose were required to be dealt with in accordance with law, therefore, to ascertain these ancillary questions Mr. Justice Ghulam Rabbani, Judge of Supreme Court was appointed to conduct enquiry and submit report on the basis of evidence, which he will be empowered to collect to determine: (i) whether before suspending the officer pressure was exerted upon him by the Interior Minister etc. as it has been reported in the newspapers due to political expediency, if so, to what consequences (ii) responsibility shall be fixed individually or collectively against the persons responsible for making investment to run the campaign against the judiciary on the electronic media; on having determined the particulars of the persons responsible for launching the propaganda campaign against the judiciary what action against him and or them is called for, to maintain the dignity and honour of the Courts---Supreme Court observed that it was expected from Mr. Justice Ghulam Rabbani to complete the inquiry expeditiously in the interest of justice---Additional Registrar of Supreme Court was deputed to facilitate Mr. Justice Ghulam Rabbani during enquiry, similarly the Federal Secretaries including Secretary Interior, Secretary Establishment, and Secretary Information shall provide assistance, whatsoever was required by him to complete the report.

Vineet Narain v. Union of India AIR 1998 SC 889 and Bank of Punjab v. Haris Steel Industries (Pvt.) Ltd. PLD 2010 SC 1109 ref.

(e) Constitution of Pakistan---

----Art. 184(3) & 199---Matter related to investigation of a corruption case of huge amount of money of people of Pakistan---Judicial review---Scope---Contention was that Supreme Court had no jurisdiction to control investigation of a criminal case and the reasons offered in support of the contention was that such a control over the investigation of criminal case by Supreme Court could be prejudicial to the accused---Validity---Approach of a court of law while dealing with criminal matters had to be dynamic keeping in view the facts and circumstances of each case and also the surrounding situation prevailing in the country; it would have been felonious and unconscionable on the part of Supreme Court if it had refused to intervene to defend the fundamental rights of such a large section of the public and leaving it only to the concerned officials who had done nothing at all in the matter for almost two years and who had remained only silent spectators of entire drama and had only witnessed the escape of the accused persons to foreign lands; it was to check and cater for such kind of gross negligence, nonfeasance and malfeasance that the framers of the Constitution had obligated the High Court under Article 199 and Supreme Court under Article 184(3) of the Constitution to intervene in the matter exercising their power to review the administrative and executive actions.

Maulvi Anwar-ul-Haq, Attorney General for Pakistan On Court Notice.

Sohail Ahmed, Secretary for Establishment Division.

Taimoor Azmat Osman, Acting Secretary for M/o Information.

Nemo for M/o Interior.

Nemo for the FIA.

Date of hearing 25th July, 2011.

2012 P L C (C.S.) 456

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

CHIEF SECRETARY, GOVERNMENT OF THE PUNJAB, and another

Versus

SHAFIQUE AHMAD CHAUDHRY and others

Civil Petitions Nos. 871-L to 877-L, 881-L to 886-L and 892-L to 898-L of 2011, decided on 11th July, 2011.

(Against the judgment dated 21-2-2011 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 1387, 1456, 1458, 1492, 1493, 1495, 1496, 1400, 1447, 1449, 1451, 1455, 1494, 1448, 1450, 1452, 1453, 1454, 1457 and 1462 of 2010).

Punjab Employees' Efficiency, Discipline and Accountability Act (XII of 2006)---

----S. 7--- Punjab Service Tribunals Act (IX of 1974), S. 4---Constitution of Pakistan, Art. 212(3)---Withholding of promotion and recovery of loss caused to public exchequer, penalty of---Executive Engineers and Store-Keepers in Irrigation Department---Financial embezzlement, charges of---Appeal filed by such officials accepted by Service Tribunal---Validity---No evidence on record available to prove that Engineers were directly responsible for making purchases and were dishonest in such exercise or thereby made any financial gain---Store-Keepers by virtue of their functions could not be saddled with liability of irregularities in purchases---Tribunal had rightly annulled the order of departmental authority---Supreme Court refused to grant leave to appeal in circumstances.

University of the Punjab, Lahore and 2 others v. Ch. Sardar Ali 1999 SCMR 1639 ref

Shahid Mubeen, Additional A.-G., Punjab for Petitioners (in all petitions)

Nasim Saibr Ch. Advocate Supreme Court for Respondent No.1 (in Civil Petitions Nos. 871, 873 and 881-L)

Ch. M. Zafar Iqbal, Advocate Supreme Court for Respondents (in Civil Petition No. 898-L of 2011).

Date of hearing: 11th July, 2011.

2012 P L C (C.S.) 470

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Jawwad S. Khawaja and Sarmad Jalal Osmany, JJ

MASOOD AHMED BHATTI and others

Versus

FEDERATION OF PAKISTAN through Secretary, M/O. Information Technology and Telecommunication and others

Civil Appeals Nos. 239 to 241 of 2011, decided on 7th October, 2011.

(Against the consolidated judgment of the High Court of Sindh, Karachi dated 3-6-2010 passed in C.Ps. Nos. D-520 of 2009, D-2414 of 2007 and D-827 of 2007 respectively)

Pakistan Telecommunication Corporation (Reorganization) Act (XVII of 1996)---

----Ss. 35(1)(2) proviso & 36(1) proviso---Status of employees---Terms and conditions of service---Appellant was employed in service by Federal Government in Telephone and Telegraph Department, which Department was converted into Pakistan Telecommunication Corporation and ultimately became Pakistan Telecommunication Company Limited (PTCL)---Grievance of appellant, was that High Court declined to implement judgment passed by Service Tribunal in his favour, on the ground that he was employee of Pakistan Telecommunication Company Limited and his service was not governed by statutory rules---Plea raised by employer company was that Federal Government had guaranteed existing terms and conditions of service and rights including pensionary benefits of employees who stood transferred from the Corporation to the company---Validity---At the moment of transition when appellant ceased to remain the employee of the Corporation and became employee of the Company, he admittedly was governed by rules and regulations which had been protected by Pakistan Telecommunication (Reorganization) Act, 1996, therefore, said rules by definition were statutory rules---Corporation could make beneficial rules in relation to its employees which were in addition to the rules of employment prevailing on 1-1-1996, however by virtue of proviso to S.35(2) of Pakistan Telecommunication (Reorganization) Act, 1996, the company had no power to "vary the terms and conditions of service" of its employees who were previously employees of the Corporation, "to their disadvantage"---Even Federal Government was debarred by virtue of S.35 of Pakistan Telecommunication (Reorganization) Act, 1996, from varying such terms and conditions of service to the disadvantage of appellant---Guarantee did not change the nature or status of the company as the principal object required under the law was to adhere to protected terms and conditions of service of transferred employees such as the appellant---Only effect of guarantee was to ensure that in the event the company would become incapable of fulfilling its obligations as to pensionary or other benefits, for reasons such as bankruptcy etc., the employees did not suffer from such event of default---Distinction was drawn between the employees who stood transferred to the company by virtue of S.35 of Pakistan Telecommunication (Reorganization) Act, 1996, and Vesting Order, on one hand and those employees who joined the company after 1-1-1996---Protection under Federal Government guarantee was not available to latter category whose terms and conditions of service could be contractual in nature and would, therefore, be non-statutory---Appellant was entitled to implementation of judgment of Service Tribunal, therefore, Supreme Court set aside the judgment passed by High Court and remaded the matter for implementation of the judgment---Appeal was allowed.

Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676; Raziuddin v. Chairman, PIAC PLD 1992 SC 531; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC 602; Ejaz Ali Bughti v. P.T.C.L. and others 2011 SCMR 333 = 2010 PLC (C.S.) 899 and Muhammad Idrees v. Agricultural Development Bank of Pakistan PLD 2007 SC 681 ref.

Appellants in person (in C.As. Nos.239 and 240 of 2011)

Abdur Rahim Bhatti, Advocate Supreme Court along with Raja Abdul Ghafoor, Advocate-on-Record for Appellants (in C.A. No.241 of 2011).

Zulfiqar Khalid Maluka, Advocate Supreme Court for Respondents (PTCL in all cases)

Date of hearing: 11th August, 2011.

2012 P L C (C.S.) 487

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

MUHAMMAD ILYAS SHEIKH

Versus

SECRETARY/CHAIRMAN, MINISTRY OF RAILWAYS and others

Civil Petition No. 1608-L of 2010, decided on 3rd June, 2011.

(Against the order dated 28-6-2010 passed by Federal Service Tribunal, Lahore in Appeal No. 230-L of 2007).

Government Servants (Efficiency and Discipline) Rules, 1973---

----R. 4(1)(b)(iv)---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Dismissal from service---Absence from duty without sanctioned leave after expiry of ex-Pakistan medical leave---Non-joining of duty by appellant after department refused his request for three years further leave---Dismissal of appeal by Service Tribunal---Validity---Appellant himself was not available for personal hearing as he was out of Pakistan as per his own request for extension of leave---No rule of natural justice or requirement of law regarding notice or hearing or about regular enquiry had been infringed---­Department had not committed any illegality in proceeding against appellant particularly after refusal of his request for extension of leave, he did not join duty, which he was bound to do---Appellant had not raised any substantial question of law of public importance---Supreme Court dismissed petition for leave to appeal, in circumstances.

Kamil Hussain Naqvi, Advocate Supreme Court with Imtiaz A. Shaukat, Advocate-on-Record and Rana Habib-ur-Rehman, Advocate Supreme Court for Petitioner.

Nemo for Respondents.

Date of hearing: 3rd June, 2011.

2012 P L C (C.S.) 491

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

Prof. Dr. SHAMIM HASSAN, UNIVERSITY OF HEALTH SCIENCES and another

Versus

Dr. WASEEM ABBAS ZAIDI and another

Civil Petitions Nos. 1213 and 1379-L of 2010, decided on 26th May, 2011.

(Against the judgment dated 13-5-2010 passed by Punjab Service Tribunal, Lahore in Appeal No. 1930 of 2009)

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 9(1) & 10---Appeal to Service Tribunal by a person not aggrieved by any final order under S. 9(1) of Removal from Service (Special Powers) Ordinance, 2000 would not be maintainable.

M. Yasin Bhatti, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Petitioners (in C.P. No. 1213-L of 2010)

Siraj-ul-Islam, Additional A.-G., Punjab for Petitioners (in C.P. No. 1379-L of 2010)

Mehmood Ashraf Khan, Advocate Supreme Court for Respondents 1 to 7 (in both cases)

M. Yasin Bhatti, Advocate Supreme Court and Mehmood-ul-Islam, Advocate-on-Record for Respondent No. 8 (in C.P. 1379-L of 2010)

Ejaz Farrukh, Senior Law Officer, for Health Department

Date of hearing: 26th May, 2011.

2012 P L C (C.S.) 507

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

TAJ MUHAMMAD AFRIDI

Versus

PRINCIPAL SECRETARY TO THE PRESIDENT SECRETARIAT and others

Civil Appeal No. 293 of 2010, decided on 6th April, 2011.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 9-4-2009 in Appeal No. 44(P) CS of 2009).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Appeal to Service Tribunal---Limitation---Limitation for filing appeal against final order being 30 days in absence of any provision providing thereagainst departmental appeal, review or representation---In presence of rules providing departmental appeal, review or representation, aggrieved civil servant could not file appeal before Tribunal without first filing departmental appeal, review or representation and before expiry of period of 90 days of such appeal or review.

(b) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 9 & 10---Appeal to Service Tribunal---Limitation---From date of communication of order, aggrieved civil servant could prefer either representation to prescribed authority or appeal to Tribunal---In case of non-receipt or non-communication of any decision to civil servant by prescribed authority within 60 days of filing of representation, civil servant could prefer appeal to Tribunal within 30 days of expiry of such period of 60 days i.e., civil servant having 90 days (60 + 30 days) from submission of representation to file appeal before Tribunal---Principles.

Zafar Iqbal v. WAPDA 1995 SCMR 16; Chief Engineer (North) v. Saifullah Khan Khalid 1995 SCMR 776; Anwar Muhammad v. General Manager Pakistan Railways 1995 SCMR 950; Muhammad Rafique v. Pakistan Telecommunication Company Ltd. 2008 SCMR 551 and Secretary Health, Government of Punjab v. Dr. Shahzad Ali Bukhari 2004 PLC (C.S.) 483 ref.

Tanveer Hussain v. Divisional Superintendent, Pakistan Railways PLD 2006 SC 249 rel.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Removal from Service (Special Powers) Ordinance (XVII of 2000), S. 10---Appeal to Service Tribunal---Limitation---Provisions of S. 4 of Service Tribunals Act, 1973 and S. 10 of Removal from Service (Special Powers) Ordinance, 2000 being distinct would be construed accordingly.

Shoaib Shaheen, Advocate Supreme Court for Appellant.

Haji M. Zahir Shah, Advocate Supreme Court/Advocate-on-Record for Respondent No. 3.

Moulvi Anwarul Haq, A.-G.P. on Court Call.

Date of hearing: 6th April, 2011.

2012 P L C (C.S.) 574

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Khilji Arif Hussain and Amir Hani Muslim, JJ

ABDUL MAJEED KHAN

Versus

TAWSEEN ABDUL HALEEM and others

Civil Petition No.463 of 2011, decided on 19th September, 2011.

(On appeal against the judgment dated 9-2-2011 passed by the Lahore High Court, Lahore in R.F.A. No.312 of 2010)

Per Amir Hani Muslim, J, Iftikhar Muhammad Chaudhry, C.J. and Khilji Arif Hussain, agreeing---

(a) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Suit for recovery of damages---Exercise of official authority---Mala fide acts---Rule of thumb---Applicability---Plaintiff was civil servant who suffered on account of official orders passed by defendant which were based on mala fide---Trial Court and High Court dismissed the suit filed by plaintiff---Validity---Orders passed by defendant were reversed by competent authority and those were found to be passed unauthorizedly---Plaintiff had brought on record a number of official documents through custodian of the record, which documents were neither objected to nor their contents were challenged by defendants before Trial Court at evidence stage---Plaintiff though had failed to quantify the damages claimed by him as required under the law, as such the same did not mean that plaintiff was not entitled to grant of general damages under the rule of thumb on the face of material brought on record by him during trial---Plaintiff was entitled to grant of general damages for mental agony which he had suffered on account of the conduct of defendant---Plaintiff pleaded specific instances to establish personal vengeance against defendant on account of which he claimed to have suffered losses and mental agony---Pleadings and evidence brought in support of claim of damages by plaintiff were sufficient to award general damages to plaintiff against defendant---Supreme Court set aside the judgments and decrees passed by Trial Court and High Court and partly decreed the suit in favour of plaintiff---Plaintiff was entitled for damages to the tune of Rs.100,000 with mark up at the rate of 10% till the date of recovery of the amount---Appeal was allowed.

Per Iftikhar Muhammad Chaudhry, C.J. agreeing with Amir Hani Muslim, J---

(b) Damages---

----'General damages' and 'special damages'---Distinction---Term 'general damages' refers to special character, condition or circumstances which accrue from immediate, direct and approximate result of wrong complained of---Similarly term 'special damages' is defined as actual but not necessary result of injury complained of---Special damages follow as a natural and approximate consequence in a particular case by reason of special circumstances or condition---In an action for personal injuries, general damages are governed by the rule of thumb whereas special damages are required to be specifically pleaded and proved---Special damages consist of out-of-pocket expenses and loss of earning incurred down to the date of trial and is generally capable of substantially exact calculation---General damages are those which law implies even if not specially pleaded, which includes compensation for pain and suffering and the like and if injuries suffered are such as to lead to continuing or permanent disability, compensation for loss of earning power in future---Basic principle, so far as loss of earnings and out-of-pocket expenses are concerned, is that injured person should be placed in the same financial position, so far as can be done by an award of money he would have, had the accident not happened.

British Transport Commission v. Gourley (1956) AC 185; Qazi Dost Muhammad v. Malik Dost Muhammad 1997 CLC 546; Islamic Republic of Pakistan v. Sh. Nawab Din 2003 CLC 991; Azizullah Sheikh v. Standard Chartered Bank Ltd. 2009 SCMR 276; Mrs. Alia Tareen v. Amanullah Khan PLD 2005 SC 99; C.K. Subramonia Iyar v. T. Kunhikuttan Nair AIR 1970 SC 376; Waldon v. War Office (1956) 1 WLR 51 and The Mediana's case 1900 AC 113 and Cooper v. Firth Brown Ltd. (1963) 2 All ER 31=(1963) I WLR 418 rel.

(c) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Suit for damages---Damages---Special or general damages---Determination---Exercise of official authority---Mala fide acts---Plaintiff was civil servant who suffered on account of official orders passed by the defendant which were based on mala fide---Trial Court and High Court dismissed the suit filed by plaintiff---Validity---Plaintiff while appearing as his own witness did not try to explain the causes of damages except stating that due to acts of defendant, he had remained jobless for four years; suffered loss of lacs of Rupees; his father died due to mental torture; and he spent lacs of Rupees on litigation as well as on medical treatment of his wife; it was therefore, necessary to determine in the light of evidence available on record the expenses which plaintiff had actually and reasonably incurred for medical treatment and litigation---Plaintiff could recover as special damages under such head only the amounts so determined---Defendant objected to the manner in which damages were claimed by plaintiff, which were round sum on each head---Apparently damages were not based on any account; neither any breakup had been given nor any explanation was offered in that behalf---Plaintiff had failed to quantify special damages as such he was not entitled for the same---Plaintiff had suffered mentally due to illegal acts of defendant, which were ultimately set aside by competent forum---Plaintiff was entitled for general damages under the rule of thumb---Supreme Court partly decreed the suit in favour of plaintiff.

Per Khilji Arif Hussain, J. not agreeing with Amir Hani Muslim, J---

(d) Damages--

----Classification---'General damages' are such, as the law presumes to be natural and probable consequences of defendant's act---'Special damages' are such as the law does infer from wrongful act but those must, therefore, be specially claimed in pleadings and proved through evidence thereof at the trial---Besides broad classifications as general and special, damages may also be contemptuous damages; nominal damages; punitive or exemplary; compensatory; and prospective damages.

(e) Damages---

----General damages---Determining factors---General damages must be such which would compensate the injured---Loss arising out of injury to reputation of a person cannot be compensated in terms of money and other non-pecuniary losses may not be accurately calculated in terms of coins but for such reasons alone, courts do not decline to grant compensation and formulate certain parameters and devise principles for evaluation or assessment of such general damages---Ordinarily in such cases just, fair and reasonable compensation is assessed and awarded to victim---No yardstick or definite principle for assessing damages in such cases and it becomes difficult to assess a fair compensation---Court in its discretion may on facts of each case and considering how far society would deem it to be a fair sum, determine the amount to be awarded to a person who has suffered such damage---General damages are those, which law implies in very violation of legal rights---Such damages need not be proved by strict evidence as they arise by inference of law, even though no actual pecuniary loss has been or can be shown---Vital canon followed by judicial mind in such cases is that conscience of court should be satisfied that damages awarded would, if not completely, satisfactorily compensate the aggrieved party---Adequate care should be taken in such regard while dilating on quantum of awards and court should be vigilant to see that claim is not fanciful or remote, the award should never rise to be reflective of lavish generosity and must also obviously not dwindle down to be an indicator of abstemious parsimony, but court should give the aggrieved party what it considers in all circumstances a fair and reasonable compensation for his loss.

C.B. Singh v. Agra Cantonment AIR 1974 All. 147; West Pakistan Industrial Development Corporation Karachi (WPIDC) v. Aziz Qureshi 1973 SCMR 555 and Muhammad Hanif v. Muhammad Bashir 2004 YLR 173 rel.

(f) Tort--

----Law of torts---Applicability---Principles---Law of torts or civil wrongs in Pakistan is almost wholly the English Law, which is administered as rules of justice, equity and good conscience---Before applying any rule of English Law, court has to see whether it suits to the society and circumstances.

(g) Tort--

----Malicious prosecution---Remedy---Where a claimant has been subjected to a criminal prosecution, as a consequence of which he loses or risks losing his liberty and/or his reputation, a remedy in the court of tort of malicious prosecution lies---Institution of a civil action should exceptionally result in liability under tort, when claimant loses the suit, the defendant's reputation is restored and he recovers his cost spent on defending the action---For malicious proceedings in bankruptcy and winding up, which may wreck claimant's business, destroy confidence in his competence and integrity and in his company's goodwill, a remedy in tort lies.

(h) Malicious prosecution---

----Claim---Determining factors---To ground a claim for malicious prosecution plaintiff must prove that the law was set in motion against him on a criminal charge; that the prosecution was determined in his favour; that it was without reasonable and proper cause; and that it was malicious.

Gregory v. Portsmouth Council (2001) 1 All. ER 560; Cavaley v. Chief Constable (1989) All. ER 1025; Muhammad Amin v. Jogendra Kumar AIR 1947 PC 108; Imran Raza Zaidi v. Government of Punjab 1996 PLC (C.S.) 691; Muhammad Shafi v. Hamidan Bibi 1990 MLD 597; Abdul Rauf v. Abdul Hamid Khan PLD 1965 SC 671; Lucknow Development Authority v. M.K. Gupta AIR 1994 SC 787 and Yaqoob Shah v. XEN, PESCO (WAPDA) PLD 2002 SC 667 rel.

(i) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Damages---Protection---Principle---Act of mala fide---Effect---Protection provided under S.23-A of Civil Servants Act, 1973, to an officer is only for the acts done 'bonafidely' but not for an act which is not bona fide---Malicious acts are not protected under said provision of law---Any order passed malafidey in colourable exercise of power cannot be termed as an act done in exercise of power conferred by Act or Rules but in fact it is an act of abuse of power to which no protection can be extended.

(j) Civil Servants Act (LXXI of 1973)---

----S. 23-A---Damages---Misuse of authority---Imposing markup/ interest on damages---Various orders passed by defendant against plaintiff were result of personal vendetta and without any basis, just to humiliate and torture him---Plaintiff claimed for general damages aggrieved on account of mental torture, damage to service career and legal expenses incurred by him---Supreme Court found the plaintiff entitled to damages with markup/interest---In absence of any statutory provisions, custom and usage, the defendant could not be burdened with the interest/markup from the date of filing of the suit.

Messrs A.Z. Company v. Messrs S. Maula Bakhsh Muhammad Bashir PLD 1965 SC 505; Pakistan v. Waliullah Sufyan PLD 1965 SC 310; Messrs Ralli Brothers Ltd. v. Firm Messrs Bhagwan Das Parmeshri Dass AIR 1945 Lah. 35; Jaggo Bai v. Hari Har Prasad AIR 1947 Privy Council 173=PLD 1947 PC 407 and A. Ismailjee and Sons Ltd. v. Pakistan PLD 1986 SC 499 rel.

Petitioner in person.

Hashmat Ali Habib, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents Nos. 1 and 3.

Nemo for Respondent No.2.

Date of hearing: 15th July, 2011.

2012 P L C (C.S.) 669

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Anwar Zaheer Jamali, JJ

QAISER MASUD

Versus

SECRETARY LAW AND PARLIAMENTARY AFFAIRS, GOVERNMENT OF PUNJAB, LAHORE and another

Civil Appeal No. 905 of 2009, decided on 8th April, 2011.

(On appeal from judgment of Punjab Service Tribunal, Lahore dated 25-7-2008 passed in Appeal No. 2337 of 2007).

(a) Civil service---

----Probational on appointment against clear vacancy--- Expiry of probation period---Effect---Civil servant, if not removed from service before expiry of probation period, would stand automatically confirmed.

(b) Federal Investigation Agency (Appointment, Promotion and Transfer) Rules, 1975---

----R. 3---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.21---Probation, appointment on---Employee serving FIA for 14 years after completion of probation period stood automatically absorbed as a permanent and confirmed employee of FIA.

Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Appellant.

Saeed Yousaf Khan, Additional Advocate-General, Punjab for Respondent No. 1.

Khalid Ismail Abbasi, Deputy Attorney-General, Arshad Ali Chaudhry, Advocate-on-Record and Jaffar Shah, Dy. Director (Law) for Respondent No.2.

Date of hearing: 8th April, 2011.

2012 P L C (C.S.) 687

[Supreme Court of Pakistan]

Present: Javed Iqbal, Tassaduq Hussain Jillani, Raja Fayyaz Ahmed and Anwar Zaheer Jamali, JJ

GOVERNMENT OF PUNJAB, through Chief Secretary and 3 others

Versus

Sardar ZAFAR IQBAL DOGAR

Civil Appeal No. 236 of 2006, decided on 2nd February, 2011.

(On appeal from judgment of Lahore High Court, Multan Bench, Multan dated 22-11-2005 passed in Writ Petition No. 2451 of 2003).

(a) Punjab Civil Servants Act (VIII of 1974)---

----S. 8-A---Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 14-A---Constitution of Pakistan, Arts. 25, 199 & 185(3)---Constitutional petition---Prayer for second time out of turn promotion from rank of Inspector to rank of Deputy Superintendent of Police (DSP) on basis of recommendation of DIG Police---Ground of meritorious and gallantry performance of petitioner in combating terrorism---Non-compliance of recommendations of DIG as petitioner lacked two qualifications regarding his length of seven years service in rank of confirmed Inspector and passing of mandatory specialized training course for Inspector---Petitioner's plea that number of Constables and two of his colleagues Inspectors had been promoted to ranks of Head Constables and DSPs respectively, while he was declined recommended promotion---Grant of such prayer by High Court---Validity---Petitioner for such gallantry performance had earlier been promoted out of turn from rank of Sub-Inspector to rank of Inspector enabling him to supersede a large number of other Sub-Inspectors, who were much senior to him in Seniority List---Petitioner for his second time such gallantry performance had been granted some benefits/rewards, cash prize, Gallantry Police Medal coupled with Rs.2 lac---Out of turn promotion of officers of BSP-17 and above lay in domain of Provincial Selection Board---Promotion prayed for required fulfilment of mandatory qualifications and approval of competent authority, which were lacking---Petitioner's plea of discrimination would not justify his claim for out of turn promotion as one or any number of wrongful actions/favours, if any, could not be made basis to justify further wrongs on plea of equal treatment or non-discrimination, which could be challenged separately before some proper forum---Supreme Court set aside impugned judgment, but declined to remit petitioner's case to Selection Board for consideration, in circumstances.

Muhammad Nadeem Arif v. Inspector-General of Police 2010 PLC (C.S.) 924 = 2011 SCMR 408 ref.

Government of Punjab v. Raja Muhammad Iqbal 1993 SCMR 1814 rel.

(b) Constitution of Pakistan---

----Art. 25---Plea of equal treatment or discrimination---Scope---One or any number of wrongful actions/favours cold not justify further wrongs on basis of such plea---Principles.

Mudassar Khalid Abbasi, Assistant Advocate-General (Punjab). for Appellants.

Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondent.

Date of hearing: 8th December, 2010.

2012 P L C (C.S.) 701

[Supreme Court of Pakistan]

Present: Javed Iqbal, Raja Fayyaz Ahmed and Asif Saeed Khan Khosa, JJ

CHIEF SECRETARY, GOVERNMENT OF PUNJAB and others

Versus

Malik ASIF HAYAT

Civil Petition No. 1724-L of 2010, decided on 2nd March, 2011.

(On appeal from the judgment dated 1-7-2010 passed by Punjab Service Tribunal Lahore in Appeal No. 1059 of 2010).

(a) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Rules of Business (Punjab), 1974, Sched. VII, Part-A, Sr.No.20---General Clauses Act (X of 1897), Ss. 21 & 24---­Constitution of Pakistan, Art 212(3)---Appeal---­Assistant Sub-Inspector Police---Dismissal from service vide order dated 5-7-1994---Absence from duty, charge of---Rejection of appeal by Service Tribunal---Directive of Chief Minister issued after accepting mercy petition in June 2005 for reinstatement of appellant in service---Implementation of such directive by authority, completion of one year "D" Course by appellant and subsequent entering his name into list "E" and promotion to post of Sub-Inspector---Issuance of show-cause notice by authority after two years alleging appellant's reinstatement to be illegal---Withdrawal of such show-cause notice by authority during pendency of constitutional petition filed there against by appellant and his subsequent promotion to rank of Inspector---Dismissal of appellant from service w.e.f. 5-7-1997 vide order dated 2-1-­2002 on same ground---Acceptance of appellant's appeal by Service Tribunal---Validity---Termination from service could not be with retrospective effect, unless competent authority was expressly empowered in such regard by some statute or rules made there under---Rectification of wrong could not be made at any time as such practice would be dangerous for service structure---Action should have been initiated against those responsible for such wrong, which could not be rectified after a long period during which appellant had not only performed his duties diligently, but had also earned few promotions and risen to rank of Inspector---­Such directive of Chief Minister was not liable to be implemented, but none had shown moral courage to resist same at relevant time--- Appellant had been reinstated in year 2005, while he had been dismissed finally on 2-1-2010 with retrospective effect i.e. on 5-7-1994---Authority had already exercised powers under S. 21 of General Clauses Act, 1897 by issuing show-cause notice, which had been withdrawn during proceedings pending in High Court---Such matter was closed once for all and could not be re-opened without any lawful justification---Order passed by a competent authority, if had taken effect and conferred a legal right, could not be rescinded subject to certain lawful exceptions---Supreme Court refused to grant leave to appeal, in circumstances.

Syed Sikandar Ali Shah v. Auditor-General of Pakistan 2002 SCMR 1124; Noor Muhammad v. Member Election Commission 1985 SCMR 1178; Noor Muhammad v. Muhammad Abdullah 1984 SCMR 1578; Dr. Muhammad Abdul Latif v. The Province of East Pakistan PLD 1964 Dacca 647 and Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 rel.

(b) Civil service---

---Service could not be terminated with retrospective effect, unless competent authority was expressly empowered in such regard by some statute or rules made thereunder.

Syed Sikandar Ali Shah v. Auditor-General of Pakistan 2002 SCMR 1124; Noor Muhammad v. Member Election Commission 1985 SCMR 1178; Noor Muhammad v. Muhammad Abdullah 1984 SCMR 1578; Dr. Muhammad Abdul Latif v. The Province of East Pakistan PLD 1964 Dacca 647 and Nawab Syed Raunaq Ali v. Chief Settlement Commissioner PLD 1973 SC 236 rel.

(c) Locus poenitentiae, principle of---

----Power of authorities to pass orders to retrace wrong steps taken by them---Scope.

There can hardly be any dispute with the rule that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e. the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.

Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407; Chairman, Selection Committee v. Wasif Zamir Ahmad 1997 SCMR 15; Miss Safia Hameed v. Chairman, Selection Committee Medical College, Quetta and 6 others PLD 1979 Quetta 12; Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others PLD 1991 SC 973 and Government of Sindh v. Niaz Ahmed 1991 SCMR 2293 rel.

Ch. Khadim Hussain Qaiser, Additional A.-G. and Muddasir Khalid Abbasi, A.A.-G. for Petitioners.

Pervaiz Inayat Malik, Advocate Supreme Court for Respondent.

Date of hearing: 2nd March, 2011.

2012 P L C (C.S.) 728

[Supreme Court of Pakistan]

Present: Mehmood Akhtar Shahid Siddiqui and Mian Saqib Nisar, JJ

MUHAMMAD AFZAL

Versus

REGIONAL POLICE OFFICER, BAHAWALPUR and others

Civil Petition No. 1196-L of 2010, decided on 3rd June, 2011.

(Against the judgment dated 19-2-2010 passed by Punjab Service Tribunal, Lahore in Appeal No. 1463 of 2009).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----Rr. 4(1)(b), 5 & 6---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Art. 212(3)---Compulsory retirement from service---Misconduct, charge of---Imposition of such penalty on basis of material collected from fact finding departmental inquiry and dispensing with regular inquiry against appellant---­Dismissal of appeal by Service Tribunal---Validity---­Department had not conducted any regular inquiry in the matter---Appellant had appeared in fact finding inquiry, but he had not been given opportunity to cross-examine witnesses---Such lapse had resulted into miscarriage of justice and caused prejudice to appellant---Supreme Court set aside impugned judgment and directed Authority to hold a de novo regular inquiry against appellant to be completed within specified time.

Shabbir Ahmad Bhutta, Advocate Supreme Court and Mian Ghulam Hussain, Advocate-on-Record for Petitioner.

Zaka-ur-Rehman, Additional A.-G. for Respondents.

Date of hearing: 3rd June, 2011.

2012 P L C (C.S.) 740

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

MUHAMMAD ADIL LATIF and another

Versus

GOVERNMENT OF PUNJAB, IRRIGATION AND POWER DEPARTMENT through Secretary and another

Civil Petitions Nos.1771 and 1772-L of 2010, decided on 26th May, 2011.

(On appeal from judgment dated 21-7-2010 of the Punjab Service Tribunal, Lahore, passed in Appeals Nos.1944 and 1945 of 2006).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Departmental promotion examination for Sub-Engineers held by Irrigation and Power Department---Notification issued by Department changing criteria and prescribed mode of papers/questions after having held such examination---Plea of employee-candidate that chances of his promotion would be adversely affected by new criteria---Dismissal of employee's appeal by Service Tribunal---Validity---Such new criteria laid down by Department was not violative of PWD Code---Impugned notification did not affect prescribed syllabus of examination---PWD Code did not prevent competent authority from changing criteria of examination within outlines of prescribed syllabus at any time--­Substituted criteria was not alleged to be against prescribed syllabus---Supreme Court dismissed petition for leave to appeal in circumstances.

Muhammad Ahmed Qazi, Advocate Supreme Court for Petitioners.

Nemo for Respondents.

Date of hearing: 26th May, 2011.

2012 P L C (C.S.) 749

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

DISTRICT EDUCATION OFFICER (MEE), BAHAWALNAGAR and others

Versus

Mst. FOUZIA NAZIR and 2 others

Civil Appeals Nos. 111-L to 113-L of 2011, decided on 26th May, 2011.

(On appeal against the judgments dated 6-7-2010, 2-6-2010 and 22-6-2010 passed by the Lahore High Court, Bahawalpur Bench in W.Ps. Nos. 179 of 2010, 5346 of 2009 and 290 of 2007).

Constitution of Pakistan---

----Arts. 185(3) & 199---Constitutional petition---Selection of petitioner against two posts i.e. Elementary School Educator (ESE) and Senior Elementary School Educator (SESE)---­Issuance of appointment letter to petitioner for post of SESE---­Revision of merit list by Authority after petitioner having worked on such post for one and a half year---Withdrawal of petitioner's appointment letter by Authority for not being on top of revised merit list and issuance of appointment letter to respondent on post of SESE---Order of High Court passed in constitutional petition not to disturb petitioner---Validity---­Supreme Court granted leave to appeal to consider as to whether High Court could direct that notwithstanding revised merit list, petitioner should be accommodated.

Faisal Zaman Khan, Additional A.-G., M. Shafique, Principal, HSS Donga Bonga, Bahwalnagar and Zubair Khan, Dy. Secretary (Legal) Education Department for Petitioners.

Ahmed Mansoor Chishti, Advocate Supreme Court for Respondent No. 1 (in C.A. No. 111-L of 2011).

Nemo for Respondents (in all other cases).

Date of hearing: 26th May, 2011.

2012 P L C (C.S.) 770

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

RASHID AHMED

Versus

CHIEF EXECUTIVE OFFICER, GEPCO and others

Civil Petition No. 1690-L of 2010, decided on 26th May, 2011.

(On appeal against the order dated 5-7-2010 passed by the Federal Service Tribunal, Lahore, in Appeal No. 93(L) of 2008).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3 & 10---Industrial Relations Ordinance (XXVIII of 1969), S.25-A---Constitution of Pakistan, Art. 212(3)---Dismissal from service under provisions of Removal from Service (Special Powers) Ordinance, 2000---Employee of an Electric Power Company---Grievance petition of employee accepted by Labour Court, but dismissed by High Court in appeal filed by Authority on the ground that Labour Court lacked jurisdiction as such company was a statutory body and owned by Federal Government, thus, its employee had remedy against an order of departmental authority before Service Tribunal---Dismissal of employee's appeal by Service Tribunal on ground that the company had no statutory rules, thus Service Tribunal had no jurisdiction against impugned penalty---Validity---Supreme Court granted leave to appeal to consider as to whether High Court could have accepted appeal of authority shortly on ground that Labour Court had no jurisdiction; and whether confusion over jurisdiction would not entitle employee to seek condonation of delay in challenging such order.

Civil Petitions Nos.1863 of 2009, 2191 of 2005, 804-K of 2009, 1247 of 2009, 12-K, 13-K and 62 - 64 of 2010 ref.

Petitioner in person.

Aurangzeb Mirza, Advocate Supreme Court and Mahmood ul Islam, Advocate-on-Record for Respondents.

Date of hearing: 26th May, 2011.

2012 P L C (C.S.) 787

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

DEPUTY INSPECTOR-GENERAL INVESTIGATION, LAHORE

versus

ASGHAR ALI

Civil Petition No. 1745-L of 2010, decided on 26th May, 2011.

(On appeal from judgment dated 16-6-2010 of the Punjab Service Tribunal, Lahore, passed in Appeal No. 1894 of 2009).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999---

----R. 5(1)(b)(i) & (ii)---Competent authority to dispense with inquiry---Scope---Such authority could dispense with inquiry, if either he possessed documentary evidence or for reasons in writing satisfied that there was no need to hold an inquiry.

Zaka-ur-Rehman Awan, Add. A.-G., Punjab for Petitioner.

Nemo for Respondent.

2012 P L C (C.S.) 793

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

DEPUTY DIRECTOR, FOOD and others

versus

Mehr ASIF NADEEM

Civil Petition No. 547-L of 2011, decided on 8th June, 2011.

(Against judgment dated 23-12-2010 of Punjab Service Tribunal, Lahore, passed in Appeal No. 2964 of 2009).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Service Tribunal, powers of---Scope---Tribunal had jurisdiction to re-examine and re-assess material, which remained before departmental authorities, to conclude as to legality and justification of penalties imposed.

Zaka-ur-Rehman Awan, Addl. A.-G. and Zulfiqar Ahmed, Enforcement Officer, Food Deptt. D.G. Khan for Petitioners.

Ch. M. Anwar Ghuman, Advocate Supreme Court for Respondent.

2012 P L C (C.S.) 805

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

ABDUL RAHMAN QURESHI

versus

AUDITOR-GENERAL OF PAKISTAN and others

Civil Petition No. 617-L of 2010, decided on 8th June, 2011.

(Against order dated 29-1-2010 of Federal Service Tribunal, Lahore, passed in M.P. No. 379 of 2008).

Service Tribunals Act (LXX of 1973)---

----S. 3---Service Tribunal---Review, power of---Scope---Service Tribunal has power of review---Second review petition before Tribunal not maintainable.

Petitioner in person.

Ms. Yasmin Saigol, D.A.-G. along with Sharif Bhatti, AAO (Legal) for Respondents.

2012 P L C (C.S.) 816

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

Rana MUHAMMAD KHALIL

versus

REGIONAL AUDIT CHIEF and others

Civil Petition No. 1340-L of 2009, decided on 27th May, 2011.

(Against the order dated 27-5-2009 passed by Lahore High Court, Lahore in W.P. No. 10204 of 2009).

Civil Procedure Code (V of 1908)---

----S. 9 & O. VII, R. 11---Constitution of Pakistan, Art. 185(3)---Suit by employee against employer Bank---Rejection of plaint by forums below on ground that defendant-Bank was a statutory body, and relationship between parties was that of Master and Servant, thus Service Tribunal had jurisdiction in such matter and not civil court---Validity---Impugned order was self-contradictory---Once relationship between parties was held to be that of Master and Servant, then plaint could not have been rejected on ground that appropriate forum in such matter was Service Tribunal---Claim being agitated by plaintiff in his suit was not based on his terms and conditions of service---Courts below had wrongly rejected plaint---Supreme Court set aside impugned orders and directed parties to appear before Trial Court, which would decide suit in accordance with law.

Petitioner in person.

Mehmood-ul-Islam, Advocate-on-Record and Noor Muhammad Khan Chandia, Advocate Supreme Court for Respondent No. 1.

2012 P L C (C.S.) 828

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillan and Amir Hani Muslim, JJ

MUHAMMAD HUSSAIN and 2 others

versus

EXECUTIVE DISTRICT OFFICER (HEALTH), MANDI BAHAUDDIN and others

Civil Petitions Nos. 646-L to 648-L of 2010, decided on 27th May, 2011.

(On appeal against the judgment dated 11-1-2010 passed by the Punjab Service Tribunal, Lahore, in Appeals Nos. 2056, 2057 and 2058 of 2009).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan, Art. 212(3)---Promotion order, recalling of---Such order was alleged by department to have been procured fraudulently---Dismissal of appeal by Service Tribunal on basis of report of Inquiry to the effect that appellant had failed to establish his promotion order having been passed by Departmental Promotion Committee---Plea of appellant that such inquiry was not legal as Members of Promotion Committee having considered working paper with regard to promotion of appellant were not examined during inquiry---Validity---Inquiry report did not clearly show whether Members of Promotion Committee were examined by Inquiry Officer or not---Supreme Court set aside impugned judgment and directed Secretary of the Department to constitute Inquiry Committee in terms of statement made by Law Officer and ensure conclusion of enquiry within specified time.

Aliya Neelum, Advocate Supreme Court, Naveed Sh. Advocate Supreme Court and Mrs. Tasneem Amin, Advocate-on-Record for Petitioners.

Jawad Hassan, Additional A.-G. along with Dr. Khalid Pervez Kh., Distt. Officer Health, Farooq Amjad Nasir, Office Supdt. EDO Health Office, Mandi Bahauddin on Court's Call.

2012 P L C ) C.S.) 834

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

MUHAMMAD AMIN

versus

CHIEF ENGINEER, IRRIGATION and others

Civil Appeal No. 793 of 2006 and C.M.As. Nos. 3471, 3476, 3519, and 3532 of 2010, decided on 17th February, 2011.

(On appeal against the judgment of Punjab Service Tribunal, Lahore dated 12-12-2001 passed in Appeal No. 494 of 1994).

Punjab Irrigation and Power Department Ministerial Service (Zonal and Circle Offices) Rules, 1998---

----R. 5---West Pakistan Irrigation Department Ministerial (Regional Offices) Service Rules, 1962, Rr. 5, 7 & Appendix---Punjab Service Tribunals Act (IX of 1974), S. 4---Promotion---Appellant being Stenographer in Irrigation Department claimed that his promotion to be due in year 1993 was liable to be made from combined seniority list of Stenographers and Assistants under West Pakistan Irrigation Department Ministerial (Regional Offices) Service Rules, 1962 and not Punjab Irrigation and Power Department Ministerial Service (Zonal and Circle Offices) Rules, 1998---Plea of department that Government of Punjab in years 1983, 1985, 1986 by changing rules had created post of Stenographer and Senior Scale Stenographer making eligible only latter for promotion as Superintendent---­Validity---Amendments in Rules, 1962 made in years 1983, 1985 and finally reflected in Rules, 1998 created post of Senior Scale Stenographer making same eligible to promotion to post of Superintendent and not Stenographers---Original posts of Stenographer and Stenotypist under scheme of Basic Pay Scale stood changed to those of Senior Scale Stenographer and Stenographer respectively since year 1983 and expressly incorporated in Rules 1998---Appellant had already availed benefit of notification of year 1983 and was promoted as Senior Scale Stenographer before year 1993---Appellant had no case on merits---Appeal was dismissed in circumstances.

Muhammad Saeed v. Chief Secretary, Government of Punjab Appeal No. 13 of 1993 rel.

Pervaiz Inayat Malik, Advocate Supreme Court for Appellant.

Mudassar Khalid Abbasi, A.A.-G. Punjab, Muhammad Aslam Sipra, DS (Legal) and Ghulam Mustafa, XEN, Lahore for Respondents Nos. 1 to 4.

Mian Mahmood Hussain, Advocate Supreme Court for Respondent No. 5.

2012 P L C (C.S.) 848

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

ABDUL GHAFOOR SHEIKH

versus

DEPUTY COLLECTOR OF CUSTOMS and others

Civil Petition No. 1794-L of 2010, decided on 27th May, 2011.

(On appeal against the judgment dated 11-8-2010 passed by the Federal Service Tribunal, Lahore in Appeal No. 634(L)CS of 2004).

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 2(4), 4(b), 5 & 6---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Dismissal from service---Misconduct, inefficiency and negligence of duty---Imposition of the penalty upon appellant after he was found guilty of such charges by Inquiry Officer---Dismissal of appeal by Service Tribunal---Validity---Inquiry Officer was not inimical towards appellant---Inquiry Officer had given full opportunity to appellant to cross-examine witnesses and lead evidence in defence---Inquiry Officer had found material against appellant establishing his guilt---Supreme Court dismissed petition for leave to appeal in circumstances.

Ch. Muhammad Rafique Warriach, Advocate Supreme Court and Mahmudul Islam, Advocate-on-Record for Petitioner.

Nemo for Respondents.

2012 P L C (C.S.) 853

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

ASJAD HUSSAIN

versus

CHIEF ENGINEER (ADMINISTRATION) POWER, WAPDA and others

Civil Petition No. 612-L of 2010, decided on 8th June, 2011.

(Against judgment dated 4-2-2010 of Federal Service Tribunal, Lahore, passed in Appeal No. 601(L)CS of 2006).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 3, 5 & 10---Constitution of Pakistan, Art. 212(3)---Removal from service---Absence from duty without leave for four (4) years after expiry of sanctioned ex-Pakistan study leave of 730 days---Dismissal of appeal by Service Tribunal---Validity---Appellant could not credibly explain reasons for his absence abroad and non-joining service after expiry of ex-Pakistan study leave---Supreme Court dismissed petition for leave to appeal, in circumstances.

Ch. M. Khalid Farooq Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2012 P L C (C.S.) 859

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

EDO EDUCATION, KHANEWAL and others

versus

MUHAMMAD AFZAL and 4 others

Civil Petitions Nos. 16 to 20-L of 2011, decided on 26th May, 2011.

(Against the judgment dated 4-10-2010 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 1545, 1546, 1547, 1548 and 1549 of 2010).

Civil service---

----Advance increment for acquiring higher qualification---Elementary English Teacher's such claim was based on Notifications dated 25-8-1983 and dated 7-7-2007 issued by Punjab Government---Plea of Authority was that such claim was not allowable in view of Notification dated 26-6-1990 admitting higher pay scale to such teacher---Validity---Such teacher had acquired higher qualification during course of her employment---If notification dated 26-6-1990 had not been enforced, then such teacher would have been entitled to increment in terms of notifications dated 25-8-1983 and 7-7-2007---Authority had not raised such plea before Service Tribunal---Clause 2 of Notification dated 26-6-1990 did not bar claim of such teacher---Such claim accepted by Tribunal was upheld by Supreme Court, in circumstances.

Zaka-ur-Rehman, Additional A.-G. and M. Akram Shahid, DEO (SE) Khanewal for Petitioners (in all cases).

Respondents in person (in C.P. 17-L of 2011).

2012 P L C (C.S.) 866

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Muhammad Sair Ali, JJ

TABASSUM SHAHZAD

versus

I.S.I. and others

C.P. No. 1119-L of 2010, decided on 17th August, 2011.

(On appeal against the judgment dated 24-4-2010 passed by Federal Service Tribunal, Islamabad in Appeal No. 46(R)(CS) of 2009).

(a) Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----Ss. 2(b) & 5---Constitution of Pakistan, Art. 212(3)---Dismissal from service---Misconduct---Departmental proceedings---Verification by Inquiry Officer---Civil servant remained absent without leave and medical certificate produced by him was found by Inquiry Committee to be forged and bogus; therefore, he was dismissed from service---Order of dismissal from service was maintained by Service Tribunal---Plea raised by civil servant was that one of the members of inquiry committee for mala fide reasons reduced himself to the level of a witness in the inquiry when he visited concerned hospital to verify about genuineness of certificate produced by civil servant---Validity---Held, it was for inquiry committee to decide how best to verify correctness of medical certificate in question---Civil servant, in his petition, did not level any personal allegation of mala fides against any member of the committee which could persuade the Court to concluded that the Committee was motivated by malice in making report against civil servant---Inquiry report and penalty awarded to civil servant was not arbitrary or against relevant rules and law declared---Civil servant failed to raise any question of law of public importance within the meaning of Art.212(3) of the Constitution to warrant interference---Leave to appeal was refused.

Ghulam Muhammad Khan v. Prime Minister of Pakistan and others 1996 SCMR 802; Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others 2010 PLC (C.S.) 559; Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440; Allah Yar v. General Manager, Railways Headquarters, Lahore and another 2001 SCMR 256; Najam-uz-Zaman and others v. Engineer-in-Chief, G.H.Q., Rawalpindi and 2 others 2005 SCMR 1802; Managing Director, NBF, Islamabad and 2 others v. Muhammad Arif Raja PLD 2006 SC 175 and Government of Pakistan through Secretary M/o. Finance and others v. Asif Ali and others 2006 SCMR 1005 ref.

(b) Mala fides---

----Question of mala fide---Proof---Malice and mala fides are questions of fact which have to be proved by leading evidence, in absence of which no adverse presumption can be drawn regarding proceedings initiated under the law and order passed by competent authority---Mere vague allegation of mala fides would be of no avail.

Federation of Pakistan v. Saeed Ahmad Khan and others PLD 1974 SC 151 rel.

Asif Nazir Awan, Advocate Supreme Court for Petitioner.

M. Naseem Kashmiri, D.A.-G., Malik Mushtaq Ahmed Awan, D.-A.-G. and A.H. Masood, Advocate-on-Record for Respondents.

2012 P L C (C.S.) 885

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Amir Hani Muslim and Ghulam Rabbani, JJ

Syed TAHIR ABBAS SHAH

versus

OGDCL through M.D. Head Office, Islamabad and another

Civil Petition No. 904 of 2011, decided on 19th August, 2011.

(On appeal from the judgment dated 19-4-2011 in W.P. No.3792 of 2010 passed by the Islamabad High Court, Islamabad).

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability---Civil Service--- Statutory rules---Employee of Oil and Gas Development Corporation assailed the order passed against him before High Court in exercise of Constitutional jurisdiction---High Court dismissed the petition on the ground that remedy available to the employee was before Service Tribunal---Validity---Employees of Oil and Gas Development Corporation being governed by statutory rules, therefore, for redressal of their grievances, remedy of filing Constitutional petition before High Court was available to them and Service Tribunal had no jurisdiction---Conclusion drawn by High Court, directing the employee of Oil and Gas Development Corporation to seek remedy before Service Tribunal was not sustainable---Supreme Court set aside judgment passed by High Court and case was remanded for decision afresh---Appeal was allowed.

Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681; Muhammad Mubeen-us-Salam v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Executive Council Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484 and M.D., O.G.D.C.L. and another v. Saleem Ataf and others C.P. No.22405 of 2010 rel.

2007 PLC (CS) 1332; Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others PLD 2010 SC 676 and Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others PLD 2011 SC 132 ref.

Ahmad Hussain v. The Oil and Gas Development Company, Islamabad and others C.P.L.A. No. 2422 of 2010 distinguished.

Abdul Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Petitioner.

Khalil-ur-Rehman Abbasi, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents.

2012 P L C (C.S.) 893

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali, Khilji Arif Hussain and Mian Saqib Nisar, JJ

Mrs. REHMAT JEHAN

versus

GOVERNMENT OF PUNJAB through Chief Secretary and others

C.A. No. 1881 of 2005, decided on 6th June, 2011.

(On appeal against the judgment dated 21-2-2004 passed by Punjab Service Tribunal, Lahore in Appeal No. 2757 of 2003).

(a) Punjab Civil Servants (Efficiency and Discipline) Rules, 1975---

----R. 2(d)---Misconduct---Appointments made on fake and forged documents by senior officer of department---Validity---Such acts for being prejudicial to good order and discipline and unbecoming of an officer would amount to misconduct.

(b) Constitution of Pakistan---

----Art. 212(3)---Appeal against judgment of Service Tribunal---­Re-appraisal of evidence by Supreme Court---Scope---­When evidence available on record was duly examined in detail by Inquiry Officer as well as Service Tribunal, Supreme Court could not go into a third exercise of its re-evaluation in absence of its gross non-consideration--- Supreme Court dismissed appeal in circumstances.

Noor M. Khan Chandia, Advocate Supreme Court and Mahmud-ul-Islam, Advocate-on-Record for Appellant.

Azeem Malik, Additional A.-G. for Respondents.

2012 P L C (C.S.) 901

[Supreme Court of Pakistan]

Present: Muhammad Sair Ali and Khilji Arif Hussain, JJ

GULZAR HUSSAIN, A.S.-I.

versus

DISTRICT POLICE OFFICER and others

Civil Petition No. 816-L of 2010, decided on 8th June, 2011.

(Against judgment dated 31-3-2010 of Punjab Service Tribunal, Lahore, passed in Appeal No. 2781 of 2009).

Punjab Civil Servants (Efficiency and Discipline) Rules, 1999----

----R. 4--- Punjab Service Tribunals Act (IX of 1973), S. 4--­Constitution of Pakistan, Art. 212(3)---­Dismissal from service---Imposition of converted penalty of forfeiture of two years approved service of appellant by Service Tribunal---Validity---Supreme Court granted leave to appeal to consider as to whether on disproof of all charges as per impugned judgment, Service Tribunal could impose such converted penalty; that on reinstatement of appellant in service, could the period during which he remained out of service be treated as leave without pay; and whether forfeiture of two years approved service was a legitimate punishment particularly in absence of proof of all charges.

Malik Saeed Hassan, Senior Advocate Supreme Court for Petitioner.

Nemo for Respondents.

2012 P L C (C.S.) 902

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Amir Hani Muslim, JJ

MUHAMMAD HAFEEZ

versus

WAPDA through Chairman and others

Civil Petition No. 1606-L of 2010, decided on 27th May, 2011.

(On appeal against the judgment dated 12-7-2010 passed by the Federal Service Tribunal, Lahore, in Appeal No. 494(L)CS of 2004).

Government Servants (Efficiency and Discipline) Rules, 1973---

----Rr. 4(1)(b) & 5---Service Tribunals Act (LXX of 1973), S. 4---Compulsory retirement from service---Wilful absence from duty and production of forged medical certificates by appellant about his illness---Dismissal of appeal by Service Tribunal---Validity---Supreme Court declined to interfere in finding of fact on question of wilful absence from duty arrived at by competent authority and concurred by Service Tribunal---Appellant had specifically asserted in memo. of appeal before Service Tribunal that he had tendered five medical certificates about his illness issued by Medical Officers of Government Hospitals and duly countersigned by Medical Superintendent, which were never examined or inquired into---Service Tribunal had not adverted to such ground of appellant---Supreme Court partly accepted appeal to the extent of findings with regard to tendering of bogus medical certificates and directed Authority to release all dues of appellant within specified time.

Mian Jaffer Hussain, Advocate Supreme Court for Petitioner.

Ch. M. Sharif, Advocate Supreme Court, C.M. Latif, Advocate-on-Record and Abdur Rehman, Dy Director WAPDA, Lahore for Respondents.

2012 P L C (C.S.) 913

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Amir Hani Muslim, JJ

DIRECTOR-GENERAL, INTELLIGENCE BUREAU, ISLAMABAD

versus

MUHAMMAD JAVED and others

Civil Appeal No. 180-K of 2010, decided on 21st July, 2011.

(On appeal from judgment of Federal Service Tribunal, Karachi dated 30-3-2010 passed in Appeal No. 56(K) (CS) of 2008).

Removal from Service (Special Powers) Ordinance (XVII of 2000)---

----S. 5---Penal Code (XLV of 1860), Ss. 302 & 310---Criminal Procedure Code (V of 1898), S. 345---Constitution of Pakistan, Art.212(3)---Reinstatement in service---Civil servant was acquitted from murder charge, on the basis of compromise effected upon payment of Diyat---Civil servant was dismissed from service as he remained absent from duty during the period in detention but Service Tribunal allowed the appeal and reinstated him in service---Plea raised by authorities was that payment of Diyat was equated with conviction in crime---Validity---Period of absence of civil servant was treated by competent authority as extraordinary leave, therefore, ground of his illegal absence was no more available for awarding any punishment to him---Offence was lawfully compromised and disposed of, whereby civil servant was acquitted---Such acquittal of civil servant could not be taken as his disqualification, coming in the way of his reinstatement in service---Supreme Court declined to interfere in the judgment passed by Service Tribunal---Appeal was dismissed.

Ashiq Raza, Deputy Attorney-General and Abdul Saeed Khan Ghori, Advocate-on-Record for Appellant.

Abdul Latif Ansari, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Respondent No.1.

Respondents Nos. 2 and 3, Pro forma Respondents.

2012 P L C (C.S.) 917

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Sarmad Jalal Osmany, JJ

EXECUTIVE DISTRICT OFFICER (REVENUE), DISTRICT KHUSHAB AT JAUHARABAD and others---Appellants

versus

IJAZ HUSSAIN and another---Respondents

Civil Appeal No. 259-L of 2009, decided on 14th July, 2011.

(Against the judgment dated 7-7-2008 passed by Lahore High Court, Lahore in W.P. No. 9415 of 2006).

(a) Constitution of Pakistan---

----Preamble---Foundation of Constitution---Scope---Principle of trichotomy of power is one of the foundational values of Constitution of Pakistan.

Dr. Mobashir Hassan v. Federation of Pakistan PLD 2010 SC 265 rel.

(b) Punjab Civil Servants Act (VIII of 1974)---

----S. 4---Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974, R.17---Constitution of Pakistan, Preamble---Recruitment, process of---Policy matter---Academic qualification and interview marks---Ratio---Trichotomy of power---Scope---Respondents were unsuccessful in selection of Patwaris and assailed process of selection on the ground that recruitment policy was defective as it had reserved 60% marks for academic qualification and 40% for interview---High Court, in exercise of Constitutional jurisdiction directed the Provincial Government to amend the recruitment policy and marks for interview should not exceed 25 % of the total marks---Authorities contended that High Court could not have issued directions to amend recruitment policy as such power fell within policy making domain of the executive authority---Validity---Recruitment policy was framed by Provincial Government as part of delegated legislation and its provisions could not have been struck down on vague considerations of being "unreasonable" or likely to be misused---Presumption was that those who exercise such powers would have done it in a bona fide manner and if such power was exercised in a mala fide manner, it was the particular mala fide act which could be challenged and struck down---Provisions did not become unconstitutional, violative of fundamental rights or unreasonable simply because it could be abused because any provisions of law could be misused if the wielder of power so intended---Framing of recruitment policy and rules thereunder, fell in the executive domain---Constitution of Pakistan was based on the principle of trichotomy of powers where legislature was vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law---Courts could neither assume the role of policy maker nor that of a law maker, therefore, to such extent the judgment passed by High Court was set aside by Supreme Court---Appeal was allowed.

Lila Dhar v. State of Rajasthan and others AIR 1981 SC 1777 and Ashok Kumar Yadav v. State of Haryana AIR 1987 SC 454 ref.

Azeem Malik, Additional A.-G. Punjab for Appellants.

Respondent No.1 in person.

2012 P L C (C.S.) 929

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

SECRETARY SCHOOL OF EDUCATION and others

versus

Rana ARSHAD KHAN and others

Constitutional Petitions Nos. 330-L, 469-L to 505-L, 510 to 525-L, 534-L to 541-L and 552-L of 2011, decided on 29th June, 2011.

(Against the judgment dated 22-12-2010 passed by the Punjab Service Tribunal, Lahore in Appeals Nos. 1933, 1934, 1962, 1937, 1938, 1940, 1941, 1942, 1943, 1944, 1947, 1948, 1949, 1950, 1951, 1952, 1954, 1955, 1956, 1958, 1959, 1961, 1962, 1963, 1964, 1965, 1967, 1968, 1970, 2066, 2067 of 2009 and 62 of 2010, 355, 1048, 1413, 1414, 1864 of 2010, 1945, 1960, 1966, 1969 of 2009, 356, 1406, 1407, 1409, 1410, 1411, 1412, 1810, 1840, 1865, 2471, 1939 of 2009, 2357 of 2010, 1953, 1957, 1946, 2596 of 2009, 637, 979 of 2010, 2472 of 2009 and 1080 of 2010).

Punjab Civil Servants Act (VIII of 1974)---

----Ss. 2(g-a)(g-b), 5 & 8---Punjab Service Tribunals Act (IX of 1974), S.4--- Constitution of Pakistan, Art. 212(3)--- Promotion--- Working papers regarding appellants' promotion prepared before their retirement from service on attaining age of superannuation---Denial of promotion to appellants due to their retirement---Service Tribunal while accepting appeal directed department to prepare working papers regarding appellants' promotion and place same before Selection Board for consideration--- Validity--- Department had delayed matter of appellants' promotion without any justifiable reason, for which they could not be made to suffer---Appellants' promotion after retirement from service would be pro forma promotion---Supreme Court refused to grant leave to appeal in circumstances.

Dr. Muhammad Amjad and another v. Dr. Israr Ahmed and others 2010 SCMR 1466 rel.

Ahmad Rauf, Additional Advocate-General, Punjab for Petitioners.

Nazir Ahmed Qureshi, Advocate Supreme Court with C.M. Latif, Advocate-on-Record for Respondents.

Respondents in person (in C.Ps. Nos. 502-L, 503-L, 504-L and 515-L to 520-L of 2011).

2012 P L C (C.S.) 939

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

IRSHAD MUHAMMAD SHAH

versus

HESCO and another

Civil Petition No. 1114 of 2010, decided on 14th June, 2011.

(On appeal from the order dated 6-4-2010 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1336(R) of 2009).

Service Tribunals Act (LXX of 1973)---

----S.4---Constitution of Pakistan, Art. 212(3)---Departmental appeal---Limitation---Appeal filed by civil servant was dismissed by Service Tribunal as his departmental appeal was time barred---Validity---Service Tribunal had rightly dismissed the appeal as his departmental appeal was time barred---No irregularity or illegality was pointed out warranting interference by Supreme Court in the judgment passed by Service Tribunal---Leave to appeal was refused.

Muhammad Aslam v. WAPDA 2007 SCMR 513 rel.

Petitioner in person.

Nemo for Respondents.

2012 P L C (C.S.) 984

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

NATIONAL ASSEMBLY OF PAKISTAN through Speaker

Versus

MUHAMMAD ASLAM SHAMI and others

Civil Petitions Nos. 756 and 1046-L of 2011, decided on 20th January, 2012(?).

(On appeal against the judgment dated 18-3-2011 passed by Federal Service Tribunal, Lahore in Appeal No. 310(L) of 2010).

Civil service---

----Deputation---Permanent absorption of deputationist in borrowing department--- Scope--- Proposal for such absorption must be initiated by borrowing department at least six months before expiry of deputation period---Deputationist in case of non-acceptance of such proposal would revert back to his parent department---Illustration.

ESTACODE; Hamida Begum v. Government of Pakistan, Ministry of Education through Secretary and others 2010 PLC (C.S.) 297 rel.

Athar Minallah, Advocate Supreme Court, Dil M. Alizai, D.A.-G. and Saadat Hussain, L.O. for Petitioner.

Akram Gondal, Advocate Supreme Court for Respondent No.1.

Khadim Hussain Qaiser, A.A.-G. and M. Akram, D.R. (LHC) for Respondent No.2.

Date of hearing: 20th January, 2012.

2012 P L C (C.S.) 992

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed and Mahmood Akhtar Shahid Siddiqui, JJ

ABDUL WAHAB KHAN

Versus

GOVERNMENT OF PUNJAB and others

Civil Appeal No.2254 of 2008 and Civil Petitions Nos.3056-L of 2000 and 3616-L of 2001, decided on 16th June, 2009.

(Against the judgments/order dated 3-7-2000 and 14-9-2001 passed by the Punjab Service Tribunal, Lahore and Lahore High Court, Lahore in Appeals Nos. 104 of 1995, 993 of 1993 and I.C.A. No.130 of 2001 respectively).

Civil service---

----Disciplinary proceedings---Penalty awarded to an employee found by court not to be sustainable---Effect---Officer having awarded such penalty would be liable to be penalized in respect of dues ultimately to be paid to such employee instead of burdening to public exchequer---Illustration.

Syed Yaqoob Shah v. XEN, PESCO (WAPDA) Peshawar and another PLD 2002 SC 667 rel.

Appellant/Petitioner in person.

Mudassar Khalid Abbasi, A.A.-G. for Respondents.

Date of hearing: 16th June, 2009.

2012 P L C (C.S.) 1006

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan, Anwar Zaheer Jamali and Tariq Parvez, JJ

MUHAMMAD ALI and 11 others

Versus

PROVINCE OF KPK through Secretary, Elementary and Secondary Education, Peshawar and others

Civil Petitions Nos. 2036 to 2046 of 2011 and Civil Petition No.145 of 2012, decided on 24th February, 2012.

(On appeal from judgment of Khyber Pakhtunkhwa Service Tribunal, Peshawar dated 27-10-2011, passed in Service Appeals Nos.1407, 1558, 1999, 2443, 2444, 3046, 3047, 3048 of 2010 and 109, 110 of 2011 and 2445 of 2010 respectively).

Civil service---

----Appointments made without advertisement of vacancies, inviting of applications and completion of codal formalities---­Termination of service of such employees without providing them opportunity of hearing---Validity---"He who seeks equity must do equity" and "approach court with clean hands"---"Ill-gotten gains could not be protected"---Such employees had got their appointments through backdoor, thus, could not agitate any grievance on pretext of denial of due opportunity of hearing to them---Such employees could not challenge principle of good governance adopted at highest level mandating each and every appointment in government service to be made on merits as per relevant rules and completion of codal formalities---Appeals filed by such employees were dismissed in circumstances.

Ghulam Nabi Khan, Advocate Supreme Court for Petitioners (in all cases).

Nemo for Respondents.

Date of hearing: 24th February, 2012.

2012 P L C (C.S.) 1015

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mian Saqib Nisar, JJ

I.-G. PUNJAB, LAHORE and others

Versus

IQBAL MEHMOOD

Civil Appeal No.389-L of 2011, decided on 26th March, 2012.

(On appeal from the judgment dated 4-1-2011 passed by Punjab Service Tribunal Lahore in Appeal No.1301 of 2010).

Punjab Civil Services Pension Rules, 1995---

----R. 3.5---Punjab Service Tribunals Act (IX of 1974), S.4--­Constitution of Pakistan, Art. 212(3)--- Leave preparatory to retirement---Order of Authority refusing to allow appellant to withdraw request for voluntary retirement after its acceptance---Service Tribunal in appeal set aside such order and allowed withdrawal of request for retirement---Validity---Appellant could withdraw request for retirement, if same had not been acted upon; leave preparatory to retirement had been given effect to after acceptance of request for retirement, Supreme Court set aside order of Service Tribunal.

Government of Sindh v. Muhammad Inayat Khan 2000 SCMR 1964 and Section Officer v. Ghulam Shabbir 2010 SCMR 1425 ref.

Ch. Muhammad Iqbal, Additional A.-G. for Appellants.

Pervaiz Inayat Malik, Advocate Supreme Court for Respondent.

Date of hearing: 26th March, 2012.

2012 P L C (C.S.) 1031

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui and Jawwad S. Khawaja, JJ

E.D.O. (EDU.) BAHAWALNAGAR and another

Versus

MUHAMMAD AKRAM

Civil Petition No. 19-L of 2010, decided on 9th September, 2010.

(Against the judgment dated 11-9-2009 passed by the Punjab Service Tribunal, Lahore in Appeal No. 3226 of 2006).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4--- Constitution of Pakistan, Art. 212(3)--- Dismissal from service---Appellant's appointment letter issued by District Education Officer (EDO) being bogus, charge of---Reinstatement of appellant in service by Service Tribunal after finding order passed against him to be on a cyclostyle form---Validity---Record did not show appellant's appointment to have been made by competent recruitment committee---District Education Officer had been compulsory retired from service for having issued numerous bogus appointment letters---Service Tribunal had not dealt with factual determination of Department that appellant's appointment letter was bogus--- Department had appropriately dealt with such bogus letters through a standard order---Supreme Court set aside impugned order of Service Tribunal in circumstances.

Imtiaz Ahmed Kaifi, Additional A.-G. and Qasim Ali, Dy. D.O. Manchanabad, Bahawalnagar for Petitioners.

Qazi Misbah-ul-Hassan, Advocate Supreme Court and M.A. Qureshi, Advocate-on-Record for Respondent.

Date of hearing: 9th September, 2010.

2012 P L C (C.S.) 1041

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

Mst. NASEEM AKHTAR

Versus

G.M. (P & D) WATER, WAPDA and others

Civil Petition No.2033-L of 2010, decided on 12th July, 2011.

(Against the judgment dated 5-11-2010 of the Lahore High Court, Lahore passed in Writ Petition No. 20970 of 2009).

Sanctioning Procedure of Grants of Widow Welfare Fund Rules---

----Constitution of Pakistan, Arts. 199 & 185(3)---WAPDA Welfare Fund established for its retired employees---­Death of petitioner's husband after four years of his retirement from Service---Petitioner-widow falling within category of beneficiaries of such Fund filed application after 17 years of his death for granting benefits thereunder---Denial of such benefits to petitioner by Authority for her application being barred by time---Dismissal of petitioner's constitutional petition by High Court---Validity---Such Fund had attributes of a Private Trust---Persons responsible to administer such Fund for being trustees were responsible to make payments to beneficiaries in accordance with its rules---Petitioner would be entitled to benefits under such Fund from date of making application, but not to prior distributions already made---Non-making of application within time would not mean that petitioner had forfeited all rights as beneficiary even in respect of period starting with her application---No provision existed in Rules denying such benefits to widow for her failure to make an application within time---Petitioner's status as a beneficiary of such Fund still existed, thus, her rights could not be barred for all times to come---Supreme Court set aside impugned judgment and directed Authority to make payments to petitioner from date of her application as being made to other similarly placed widows.

Mian Jaffar Hussain, Advocate Supreme Court for Petitioner.

Faiz-ur-Rehman, Advocate-on-Record for Respondents.

Date of hearing: 12th July, 2011.

2012 P L C (C.S.) 1045

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Mian Saqib Nisar and Asif Saeed Khan Khosa, JJ

AKRAM UL HAQ ALVI

Versus

JOINT SECRETARY (R-II) GOVERNMENT OF PAKISTAN, FINANCE DIVISION, ISLAMABAD and others

Civil Appeal No. 245-L of 2011, decided on 29th June, 2011.

(On appeal against the order dated 16-11-2010 passed by the Federal Service Tribunal, Islamabad in Appeal No. 1389(R)CS of 2010).

Civil Servants Act (LXXI of 1973)---

----S. 19---Civil Service Rules, R. 4---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Appeal---Increase in pension of appellant allowed on gross pension through Notification dated 23-7-1999 withdrawn through Notification dated 4-9-2001 allowing same on net pension---Refusal of Service Tribunal to give appellant benefit of Notification of year 1999---Validity---Government under S. 19 of Civil Servants Act, 1973 had powers to fix an amount of pension, increase same, bring about changes therein from time to time and prescribe method for its calculation---In absence of any bar or restriction, Government was free to decide whether to grant increase in pension on gross or net pension---Previous mode of increase on gross pension could not restrain Government from changing same---Increase in pension was purely an executive act and based on a policy taking into consideration various factors including inflation and Government financial constraints---In absence of definition of pension for purpose of calculating increase therein, pension would be given meaning assigned thereto in instrument by which same was increased---According to Cl. (f) of Para 16 of Notification dated 4-9-2001, rate of increase in pension in future would be calculated on net pension instead of gross pension---Supreme Court dismissed appeal in circumstances.

Bashir Ahmed Solangi v. Chief Secretary, Government of Sindh 2004 SCMR 1864 and Government of Pakistan v. Village Development Organization 2005 SCMR 492 ref.

Civil Appeals Nos. 1305 to 1327 of 2003 fol.

Appellant in person.

Naseem Kashmiri, D.A.-G. and A.H. Masood, Advocate-on-Record for Respondents.

Date of hearing: 29th June, 2011.

2012 P L C (C.S.) 1052

[Supreme Court of Pakistan]

Present: Javed Iqbal and Nasir-ul-Mulk, JJ

Dr. SHAHNAZ WAJID

Versus

FEDERATION OF PAKISTAN through Secretary Establishment Division, Government of Pakistan, Islamabad

Civil Petition No. 297 of 2010, decided on 21st June, 2011.

(On appeal from the judgment dated 13-1-2010 passed by Federal Service Tribunal, Islamabad, passed in Appeal No. 384(R)CS of 2009).

(a) Civil Servants (Appointment, Promotion and Transfer) Rules, 1973---

----R. 8-A---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Arts.25 & 212(3)---Appeal---Medical Surgeon in Government Hospital---Application for consideration of case for promotion in BS-20---Requisite qualification, lacking of---Dismissal of petitioner's appeal by Service Tribunal---Validity---Prescribed mandatory pre-requisite to get promotion in BS-20 was "higher diploma", which petitioner did not have---In absence of any amendment in existing rules, recommendations for promotion, if any made, would have no substantial bearing on merits of petitioner's case---Provision of Art. 25 of the Constitution would not apply to petitioner's case--- Supreme Court refused to grant leave to appeal in circumstances.

(b) Constitution of Pakistan---

----Art. 25---Reasonable classification of persons and things for equal protection of law---Scope.

Equality clause does not prohibit different laws for those differently circumstanced provided a rational standard is laid down to guide the discretion of the relevant authority to choose the appropriate law. A State may classify persons and objects for the purpose of legislation and make laws applicable only to persons or objects within a class. In fact almost all legislation involves some kind of classification whereby some people acquire rights or suffer disabilities, which others do not. Expression "equal protection of law" does not place embargo on power of State to classify either in adoption of police laws or tax laws or eminent domain laws, rather gives to State exercise of wide scope of discretion, of course, nullifying "what is without any reasonable basis". The State has the power of what is known as "classification" on the basis of rational distinctions relevant to the particular subject dealt with. Classification may be due to geographical situation or it may be based on territorial, economic, communal and other similar considerations. The Constitution itself contemplates passing of different laws for different Provinces by their respective legislatures. The doctrine of reasonable classification is founded on the assumption that the State has to perform multifarious activities and deal with a vast number of problems. It, therefore, should have the power to make a reasonable classification of persons and things to which different treatment may be accorded, provided there is legitimate basis for such difference the State can make laws to attain special objects, and the administrative authorities may make classification, in pursuance of such laws. But the classification should not be arbitrary and capricious and must rest on reasonableness and have a fair nexus and a just relation with the need for which classification is made.

Ziaullah Khan v. Government of Punjab PLD 1989 Lah. 554; Akram Khan v. State PLD 1976 Lah. 1224; Fauji Foundation v. Shamimur Rehman PLD 1983 SC 457; I. A. Sharwani v. Government of Pakistan 1991 SCMR 1041; Aziz Begum v. Federation of Pakistan PLD 1990 SC 899; Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7; Kathi Raning v. State of Saurashtra AIR 1952 SC 123; Dhirendra v. Supdt. and Remembr AIR 1954 SC 424; Zain Noorani v. Secretary of National Assembly PLD 1957 Kar. 1; Government of Punjab v. Naila Begum PLD 1987 Lah. 336; Charanjit Lal v. Union of India AIR 1951 SC 41; State of West Bengal v. Anwar Ali AIR 1952 SC 75; Rehman Shagoo v. State of J&K 1958 Cri L Jour 885 and TK Abraham v. State of Tra. Co. AIR 1958 Ker. 129 rel.

M. Shoaib Shaheen, Advocate Supreme Court for Petitioner.

Mujtaba Haider Sherazi, D.A.-G. and M.S. Khattak, Advocate-on-Record for Respondents.

Date of hearing: 21st June, 2011.

2012 P L C (C.S.) 1099

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani and Mahmood Akhtar Shahid Siddiqui, JJ

MAZHAR HUSSAIN

Versus

GENERAL MANAGER OPERATIONS, RAILWAY HEADQUARTERS and others

Civil Petition No. 351-L of 2011, decided on 18th July, 2011.

(On appeal from the judgment dated 3-1-2011 passed by the Federal Service Tribunal, Lahore in Appeal No.265(L) of 2008).

Civil Servants Act (LXXI of 1973)---

----S. 9---Service Tribunals Act (LXX of 1973), S. 4---Constitution of Pakistan, Art. 212(3)---Promotion---Dismissal of appeal by Service Tribunal for being time barred---Appellant's plea that though he gave grievance notice to department after five years of his retirement, but department had delayed its enquiry and he filed appeal before Service Tribunal soon after taking of adverse decision by department---Validity---Question whether department was responsible for delay in deciding appellant's grievance petition required consideration, whereupon would depend question whether delay in filing of appeal was condonable or not---­Supreme Court set aside impugned judgment, resultantly appeal would be deemed pending before Service Tribunal for its decision.

Petitioner in person.

Hafiz Muhammad Saeed, Advocate Supreme Court and C.M. Latif, Advocate-on-Record for Respondents.

Zia-ul-Qamar, D.A.-G. on Court's Call.

Date of hearing: 18th July, 2011.

2012 P L C (C.S.) 1104

[Supreme Court of Pakistan]

Present: Javed Iqbal and Jawwad S. Khawaja, JJ

MUHAMMAD AZAM

Versus

MUHAMMAD TUFAIL and others

Civil Appeals Nos. 653 and 656 of 2008, decided on 2nd November, 2010.

(On appeal from the judgment dated 17-1-2007 and 6-3-2007 of the Punjab Service Tribunal, Lahore passed in Appeals Nos. 2328 and 2899 of 2006 respectively).

(a) Punjab Civil Servants Act (VIII of 1974)---

----S.8---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Art. 212(3)---Promotion---Appeal to Service Tribunal---Acceptance of appeal of respondent---Plea that without challenging original order of promotion of petitioner, respondent's appeal was liable to be dismissed; that respondent's appeal was not competent against findings of having found petitioner fit for promotion as same was not within jurisdiction of Service Tribunal; and that before passing impugned order, Service Tribunal had not granted opportunity of hearing to petitioner---Supreme Court granted leave to appeal to consider inter alia questions raised by petitioner.

Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Zafar Iqbal v. MGO., MGO Branch 1995 SCMR 881; Ghulam Jillani v. Government of Punjab 2001 PLC (C.S.) 157 and Muhammad Iqbal v. Exe. DOR (Rev.) 2007 SCMR 682 ref.

(b) Punjab Revenue Department (Revenue Administration Posts) Rules, 1990---

----Sched. Cols. Nos. 6, 7 & 10---West Pakistan Kanungo Services (Northern Zones) Rules, 1964---Punjab Service Tribunals Act (IX of 1974), S.4---Constitution of Pakistan, Art. 212(3)---Promotion---Promotion of appellant-Patwari as Kanungo on 4-8-1990 on merits after qualifying departmental examination of Kanungo---Departmental appeal of respondent-Patwari, not having passed such examination, accepted by Board of Revenue directing placement of his case before Departmental Promotion Committee---Such Committee vide order dated 3-2-2005 recommended pro forma promotion to respondent w.e.f. 4-8-1990--- Appeal filed against respondent's promotion accepted by Service Tribunal---Validity---Passing of such examination along with successful training was sine qua non for promotion as Kanungo, but not merely a formality---Respondent had not passed such examination, thus, his case was not considered by Committee during five years w.e.f. 1990 to 1995 --- Respondent had not challenged proceedings of Committee held during said five years and seniority list of Kanungo prepared on basis of recommendations of such Committee---Respondent could not be granted pro forma promotion as seniority list had attained finality for not being challenged by him---Amendments made in Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 through Notification No.SOR-II-1-15/93, dated 25-2-1994 deleting Entries at Sr. Nos. 1 to 3 in Column No.10 of Schedule thereof had in fact deleted condition of passing of such examination for promotion purposes, but remained such condition for Confirmation as Kanungo---After such amendment, there would be no examination for promotion to post of Kanungo---Respondent after having qualified such examination was promoted as Kanungo on 2-8-1990 when the Rules were in force---Respondent was not entitled for pro forma promotion w.e.f. 4-8-1990---Supreme Court dismissed respondent's appeal in circumstances.

(c) Civil service---

----Promotion---No vested right would exist in promotion or rules determining eligibility for promotion.

Government of Punjab v. Muhammad Awais Shahid 1991 SCMR 696 and Muhammad Iqbal v. Saeeda Bano 1991 SCMR 1559 rel.

(d) Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Promotion---Appeal---Jurisdiction of Service Tribunal---Scope---Service Tribunal had no jurisdiction to dilate upon question of fitness of a civil servant as question of eligibility for promotion would not fall within its domain.

Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 rel.

(e) Punjab Service Tribunals Act (IX of 1974)---

----S.4---Promotion--- Appeal---Jurisdiction of Service Tribunal---Scope---Interpretation of notification, rules and other relevant material concerning promotion of civil servant would fall within jurisdictional domain of Service Tribunal.

Mehdi Khan Chauhan, Advocate Supreme Court for Appellant.

Shahid Zaheer Syed, Advocate Supreme Court for Respondent No.1.

Ex parte for Respondents Nos. 2 and 3.

Date of hearing: 2nd November, 2010.

2012 P L C (C.S.) 1116

[Supreme Court of Pakistan]

Present: Jawwad S. Khawaja and Mian Saqib Nisar, JJ

CIVIL AVIATION AUTHORITY

Versus

MUHAMMAD YOUSAF AMAF

Civil Petition No.1669-L of 2010, decided on 11th July, 2011.

(Against the order dated 15-7-2010 of the Punjab Service Tribunal, Lahore passed in Appeal No.702-L/CS/2004).

Punjab Service Tribunals Act (IX of 1974)---

----S. 4---Constitution of Pakistan, Art.212(3)---Appeal---Dismissal from service---Dismissal of appeal on 8-7-2006 for having abated---Grievance petition filed by appellant in Labour Court dismissed on 24-3-2007 for want of prosecution---Appellant's application for restoration of grievance petition dismissed by Labour Court on 11-12-2007---Appellant's application filed on 21-10-2009 in Service Tribunal for recalling order of abatement for having been passed by its Registrar---Order of Tribunal reviving appeal---Validity---Order of abatement had been passed and signed by two Members of Tribunal and not by its Registrar as alleged by appellant---Appellant had not explained as to why he had not challenged orders of Labour Court dismissing his grievance petition and restoration application---Tribunal had no jurisdiction to recall order of abatement on basis of such application filed after two years of dismissal of appellant's case by Labour Court---Any order made by Tribunal after passing order of abatement of appeal would itself be without jurisdiction or lawful authority---Impugned order of Tribunal reviving appeal was patently without jurisdiction---Supreme Court set aside impugned order and affirmed appellant's dismissal from service for having attained finality.

Qureshi Muhammad Hafeez, Advocate Supreme Court for Petitioner.

Qamar Zaman Qureshi, Advocate Supreme Court and Haji Muhammad Rafi Siddiqui, Advocate-on-Record for Respondent.

Date of hearing: 11th July, 2011.

2012 P L C (C.S.) 1126

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Nasir-ul-Mulk and Sarmad Jalal Osmany, JJ

GOVERNMENT OF PUNJAB through Secretary (S&GAD), Lahore and another

Versus

ZAFAR MAQBOOL KHAN and others

Civil Appeals Nos. 749 and 750 of 2008, decided on 9th February, 2012.

(On appeal from the judgment dated 7-4-2008 and 10-4-2008 passed by Lahore High Court, Lahore in W.Ps. Nos. 4587 of 2007 and 5061 of 2007).

(a) Punjab Provincial Management Service Rules, 2004---

----Rr. 5, 22 & Sched. I---Punjab Public Service Commission Ordinance (II of 1978), S. 10---Punjab Public Service Commission Regulations, 2000, Regln. 22---Constitution of Pakistan, Art. 185(3)--­Provincial Management Service Examination---Prescribed and advertised qualification for such examination being "Graduate in Second Division"---Petitioner having graduated in 3rd division and obtained 2nd class in master degree---Placing of petitioner's name in merit list after qualifying written test and interview---­Rejection of petitioner's candidature by Public Service Commission for lacking prescribed and advertised qualification---Acceptance of petitioner's constitutional petition by High Court---Validity---Supreme Court granted leave to appeal, inter alia, to consider questions as to whether a candidate obtaining 3rd division in graduation with a 2nd class master degree would be eligible for applying for a post for which minimum requirement was graduation in 2nd class, and whether in doing so High Court violated provisions of Regln. 22 of Punjab Public Service Commission Regulations, 2002; and whether impugned judgment was not against settled law to the effect that court once having found Regulations/Rules framed under statutory power to be within ambit of relevant statute, could not sit in its judgment over wisdom of effectiveness or otherwise of policy laid down by statutory body and could not declare such Regulations to be ultra vires merely considering that same would not serve the object and purpose of the Act.

Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others PLD 1993 SC 210 and Civil Petition No. 1478-L of 2009 and Human Rights Case No.6741-G of 2009 ref.

(b) Punjab Provincial Management Service Rules, 2004---

----R. 39---Punjab Public Service Commission Ordinance (II of 1978), S.10---Punjab Public Service Commission Regulations, 2000, Regln.22---Provincial Management Service Combined Examination---Petitioner's name placed in merit list after qualifying written test and interview---Rejection of petitioner's candidature for having appeared for 4th time in such examination and become disentitled to compete after availing three chances earlier---Acceptance of petitioner's constitutional petition by High Court---Validity---Supreme Court granted leave to appeal, inter alia, to consider questions of law as to whether impugned judgment was not violative of Regln. 39 of Punjab Public Service Commission Regulations, 2000; and such Regulations having statutory sanction, violation thereof would amount to violation of law rendering impugned judgment as illegal; and whether High Court in exercise of constitutional jurisdiction could not declare a policy decision to be in violation of principles of natural justice and hold that no constraint could be laid down by Government for requiring appearance of a candidate in examination for induction into civil service.

Karachi Building Control Authority and 3 others v. Hashwani Sales and Services Limited and 3 others PLD 1993 SC 210 ref.

(c) Civil service---

----Appointment---Eligibility of a candidate, determination of---Criteria.

The eligibility of a candidate has to be determined in accord with the advertisement for the post, service rules governing the appointments and any amendment or instruction backed by law.

(d) Punjab Provincial Management Service Rules, 2004---

----R. 39---Punjab Public Service Commission Ordinance (II of 1978), S. 10---Punjab Public Service Commission Regulations, 2000, Regln.22---Constitution of Pakistan, Art. 185(3)---Posts of Provincial Management Service---Combined Competitive Examination---Petitioner's name placed in merit list after qualifying written test and interview, but his candidature rejected for having appeared for 4th time in such examination after three earlier availed chances---Petitioner's constitutional petition accepted by High Court on the ground that nomenclature of present posts was different from the one in which he had earlier appeared and availed three chances, which were not countable towards chances available to him in present examination---Validity---Regulation 39 of Punjab Provincial Management Service Rules, 2004 provided three chances irrespective of type or categories of posts grouped in such examination---Such examination was point of reference to count chances availed and not name of such posts---Supreme Court set aside impugned judgment of High Court and dismissed constitutional petition in circumstances.

Mudasir Khalid Abbasi, Assistant A.-G. Punjab, M. Farooq Raja, Dy. Dir Legal, PPSC, Lahore and M. Aslam Khan, SO (S&GAD), Lahore for Appellants (in both cases).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondent No.1 (in C.A. No.749 of 2008).

Mushtaq Ahmed Mohal, Advocate Supreme Court for Respondents Nos. 4 to 5 (in C.A. No.750 of 2008).

Date of hearing: 9th February, 2012.

2012 P L C (C.S.) 1144

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany, Gulzar Ahmed and Muhammad Athar Saeed, JJ

MUHAMMAD FAHIM SOOMRO

Versus

WAQAR AHMED QADRI and others

Civil Petition No.188-K of 2011, decided on 6th March, 2012.

(On appeal against the judgment dated 8-1-2011 passed by High Court of Sindh, Karachi in C.P. No.D-2256 of 2008).

Sindh Civil Servants Act (XIV of 1974)---

----S. 9-A---Out of turn promotion by Chief Minister on 25-10-2008 after deletion of S.9-A of Sindh Civil Servants Act, 1974 w.e.f. 26-2-2008---Validity---Such promotion would be illegal.

Ghulam Shabbir v. Muhammad Munir Abbasi and others 2011 PLC (C.S.) 763 ref.

M.M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Petitioner.

Masood A. Norrani, Advocate Supreme Court and A.S.K. Ghori, Advocate-on-Record for Respondents Nos.1 to 25.

Date of hearing: 6th March, 2012.

2012 P L C (C.S.) 1153

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

AJMAL HASSAN KHAN and another

Versus

GOVERNMENT OF SINDH and others

Civil Appeals Nos. 51-K and 52-K of 2011, decided on 15th March, 2012.

(On appeals from the judgment dated 21-9-2010, passed by the Sindh Services Tribunal, Karachi in Appeals Nos. 99 and 100 of 2009).

Sindh Civil Servants Act (XIV of 1973)---

----S. 9---West Pakistan Secretariat (Section Officers) Service Rules, 1962, R.5---Dispute over seniority list---Civil servants (appellants) promoted to posts reserved for direct recruits, claiming to be on a regular senior position above the direct recruits (respondents)---Validity---Eligibility for promotion of civil servants (appellants) was to be considered in terms of S.9 of the Sindh Civil Servants Act, 1973, which provided for reservation of quota for departmental promotion---Rule 5 of West Pakistan Secretariat (Section Officers) Service Rules, 1962, prescribed that 50% of initial recruitment of officers was to be filled on the basis of competitive examination and the remaining 50% of the vacancies shall be filled by selection on merits with due regard to the seniority from among the superintendents---Said rule was further exemplified by a notification which provided for quota of 50% by initial appointment and 50% by promotion---Civil Servants, in the present case, were promoted to the posts of Section Officers against the quota reserved for direct recruits, as there was no vacancy for their promotion against such posts---Civil servants being promotees to the posts reserved for direct recruits could not claim themselves to be on a regular senior position above the direct recruits as their promotion was to be adjusted as per quota of promotees and direct recruits---Promotion of civil servants was an ad hoc and temporary one, and on adjustment being made by seniority list, they were rightly relegated to the post to which they were entitled under the rules---No illegality or perversity in the impugned judgment having been found, appeals of civil servants were dismissed by the Supreme Court.

Federation of Pakistan v. Azam Ali and others 1985 SCMR 386 and Nasim ul Haque Malik v. Chief Secretary, Sindh and 4 others 1996 PLC (C.S.) 921 fol.

Abdul Saeed Khan Ghori, Advocate Supreme Court/Advocate-on-Record for Appellants (in both cases).

Shafi M. Memon, Additional A.-G. for Respondents Nos.1 and 2.

Nemo for Respondents Nos. 3, 5 and 8.

Ansari Abdul Lateef Senior Advocate Supreme Court for Respondents Nos. 13 to 16.

Ex parte for Respondents Nos.4, 6, 7, 9-18, 22, 24, 25, 28-30 and 33-34.

M. M. Aqil Awan, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondents Nos. 19, 20, 23, 26 and 32.

Date of hearing: 15th March, 2012.

2012 P L C (C.S.) 1165

[Supreme Court of Pakistan]

Present: Anwar Zaheer Jamali and Gulzar Ahmed, JJ

PROVINCE OF SINDH and others

Versus

Syed AFTAB ALI SHAH

C.P.L.A. No.822-K of 2011, decided on 14th March, 2012.

(On appeal from judgment of Sindh Service Tribunal, Karachi dated 2-7-2011 passed in Service Appeal No.122 of 2010).

Constitution of Pakistan---

----Art. 212(3)---Civil service---Promotion---Hardship case---Service Tribunal restored an earlier order in favour of the civil servant (respondent), which order was made on a one time (hardship case) with the observation that same should not be quoted as precedent by other officers of the branch---Supreme Court granted leave to appeal to examine the legality and propriety of such order of the Tribunal as well as the order which had been restored thereby.

Shafi Muhammad Memon, Additional Advocate-General, Sindh and Shiraz Iqbal Chaudhry, Advocate-on-Record for Petitioners.

Ansari Abdul Latif, Senior Advocate Supreme Court and Ghulam Qadir Jatoi, Advocate-on-Record for Respondent.

Date of hearing: 14th March, 2012.

2012 P L C (C.S.) 1186

[Supreme Court of Pakistan]

Present: Mahmood Akhtar Shahid Siddiqui, Jawwad S. Khawaja and Mian Saqib Nisar, JJ

MUHAMMAD SULEMAN---Petitioner

Versus

COMMISSIONER OF INCOME TAX/ WEALTH TAX, FAISALABAD---Respondent

Civil Petition No.2433-L of 2003, decided on 7th February, 2011.

(Against the order dated 19-7-2003 passed by Federal Service Tribunal, Lahore Bench in Appeal No.459(L)(CS) of 2002).

Service Tribunals Act (LXX of 1973)---

----S. 4---Constitution of Pakistan, Art.212(3)---Limitation---Non-filing of appeal before Service Tribunal within 90 days of filing departmental representation---Dismissal of appeal by Service Tribunal---Appellant's plea that after filing representation on 13-9-1999, he filed reminder on 28-4-2001, which were dismissed vide order dated 11-6-2002, thus appeal thereagainst before Tribunal was not time-barred; and that during such period, he had approached the High Court---Validity---When departmental appeal was not decided within 90 days, then appellant could file appeal before Tribunal under Proviso (a) of S.4 of Service Tribunals Act, 1973---Appellant had not explained such long period---Limitation could not be calculated from the reminder for not being a representation for first time---Appellant's action to ,have approached High Court during such period was absolutely irrelevant and would not extend period of limitation---Supreme Court refused to grant leave to appeal in circumstances.

Faiz-ur-Rehman, Advocate-on-Record for Petitioner.

Mian Yousaf Omer, Advocate Supreme Court and Haji M. Rafi Siddiqui, Advocate-on-Record for Respondent.

Date of hearing: 7th February, 2011.

2012 P L C (C.S.) 1216

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ghulam Rabbani and Khalil-ur-Rehman Ramday, JJ

MUHAMMAD ALI SATAKZAI and others

Versus

APPOINTING AUTHORITY OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGES through Registrar Balochistan High Court and others

Civil Petition No.26-Q of 2010, decided on 5th May, 2010.

(On appeal from the judgment dated 4-3-2010 of the High Court of Balochistan, Quetta passed in Constitutional Petition No.803 of 2009), Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002---

----Constitution of Pakistan, Arts.2-A, 175, 199 & 203---Constitutional petition---Additional District and Sessions Judges, Civil Judges/Judicial Magistrates and Judicial Officers, posts of---Appointment on such posts by Chief Justice of High Court subject to regular selection of appointees by Public Service Commission---Order of High Court passed in exercise of constitutional jurisdiction restraining permanently such Commission from conducting tests/interviews regarding any such posts in future while directing Government to make within 60 days necessary amendments in Balochistan Additional District and Sessions Judges and District and Sessions Judges Service Rules, 2002, Balochistan Civil Judges/Judicial Magistrates Service Rules, 2002 and Balochistan Qazis and Member Majlis-e-Shoora Service Rules, 2002 to enable High Court to conduct tests/interviews for recruitment of Judicial Officers through a Commission comprising of its Administrative Committee or a Committee of three or more Judges constituted by such Committee---Validity---Introduction of Public Service Commission in process of selection of such Judicial Officers was offensive of concept of independence of judiciary and separation of judiciary from executive---Petitioners-appointees could not claim to have any vested right entitling them to regularization of their services in violations of conditions on which their appointments had been made and subject to which conditions they had accepted their appointments---Impugned declaration and directions of High Court were not open to any exception---­Supreme Court refused to grant leave to appeal.

Muhammad Aslam Chishti, Senior Advocate Supreme Court and S.A.M. Quadri, Advocate-on-Record for Petitioners.

Mehmood Raza, Additional, Advocate-General for Respondents.

Applicants in Person (in C.M.A. No.47-Q of 2010).

Date of hearing: 5th May, 2010.

2012 P L C (C.S.) 1261

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk, Raja Fayyaz Ahmed, Jawwad S. Khawaja, Rahmat Hussain Jafferi and Tariq Parvez, JJ

WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through Chairman and others

Versus

Dr. ALTAF-UR-REHMAN

Civil Review Petition No.175 of 2008 in Civil Petition No.1425 of 2008, decided on 30th April, 2010.

(On review from the judgment of this Court dated 19-11-2008 passed in C.P. No.1425 of 2008).

(a) Water and Power Development Authority (Water Wing) Scientific Officers Service Rules, 1980---

----Rr. 2 & 6(b)(i)---Work-charged employee---Counting of work-charged service towards regular service for grant of time scale---Scope---Work-charged employee, though being employee of WAPDA, could not avail benefit under WAPDA (Water Wing) Scientific Officers Service Rules, 1980---Said Rules did not exclude eligibility of said employee to acquire any benefit thereunder---Ten years continuous service mentioned in R. 6(b)(i) of the Rules, referred to service and was not qualified by word "regular", which would include any service regardless of its nature rendered continuously in Water Wing of WAPDA.

(b) Constitution of Pakistan---

----Art. 212(3)---Factual plea raised before Supreme Court neither raised in comments filed by authority before Service Tribunal nor decided by the Tribunal---Validity---Such plea could not be raised for first time before Supreme Court.

Aurangzeb Mirza, Advocate Supreme Court for Petitioners.

Shoaib Shaheen, Advocate Supreme Court and Ch. Akhtar Ali, Advocate-on-Record for Respondent.

Date of hearing: 30th April, 2010.

2012 P L C (C.S.) 1271

[Supreme Court of Pakistan]

Present: Nasir-ul-Mulk and Rahmat Hussain Jafferi, JJ

GHULAM RASOOL

Versus

SECRETARY, GOVERNMENT OF PAKISTAN, MINISTRY OF DEFENCE and others

Civil Appeal No. 228 of 2003, decided on 22nd April, 2010.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 16-1-2003 passed in Appeal No. 68(R) CS of 2001).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---General Clauses Act (X of 1897), S. 21---Constitution of Pakistan, Art. 212(3)---Sanitary Inspector in Cantonment Board absorbed permanently as Food Inspector---Reversion of Food Inspector to post of Sanitary Inspector after he worked on a higher post of Food Inspector for four years---Dismissal of appellant's appeal by Service Tribunal---­Validity---Supreme Court granted leave to appeal to consider questions as to whether a civil servant after absorption and promotion to a higher grade and having worked against such post for four years, could be reversed to lower post; whether principle of locus poenitentiae would attract in the case, whether any change in rules or policy could have retrospective effect, and whether a civil servant could be reverted to a post where reduction in pay would become obvious.

2004 SCMR 1864 rel.

(b) Cantonments Pure Food Act (XVI of 1966)---

----S. 15---Service Tribunals Act (LXX of 1973), S. 4---General Clauses Act (X of 1897), S. 21 ---Constitution of Pakistan, Art. 212---Appeal---Reversion to lower post after working four years on higher post---Sanitary Inspector in Cantonment Board absorbed on permanent basis as Food Inspector by order of Executive Officer dated 15-12- 1996 after completing probation period---Letter of Executive Officer addressed to Director-General, Military Lands and Cantonments Department through Director Military Lands and Cantonments informing him about such absorption of appellant with a request to delete his name from seniority list of Sanitary Inspectors---Deletion of appellant's name from such list by order of Director dated 25-8-1998---Order of Ministry of Defence dated 4-10-2000 annulling appellant's absorption on the ground that only Director as appointing authority had power to do so, but not the Executive Officer---Dismissal of appellant's appeal by Service Tribunal---­Validity---Absorption could not be equated with appointment or promotion---Appellant's absorption was not a fresh appointment---Appellant's absorption had been made with implied, if not expressed, approval of Director being competent authority---Effect of accepting Director as appointing authority would be that Ministry of Defence was not competent to issue impugned order---Principle of locus poenitentiae would attract to present case as appellant having been initially appointed on trial basis on recommendations of a committee and having completed trial period had been absorbed against an existing vacancy---Relevant authority had accepted such absorption by deleting appellant's name from Seniority List of Sanitary Inspectors---Supreme Court set aside impugned judgment of Tribunal and order of Ministry of Defence.

Kh. Saeed-ul-Zafar, Advocate Supreme Court for Appellant.

Ex parte for Respondents Nos. 1 and 2.

Altaf Illahi Sheikh, Senior Advocate Supreme Court for Respondent No. 3.

Date of hearing: 22nd April, 2010.

2012 P L C (C.S.) 1285

[Supreme Court of Pakistan]

Present: Mian Shakirullah Jan and Amir Hani Muslim, JJ

WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE through Chairman and others

Versus

Haji ABDUL AZIZ and others

Civil Appeals Nos. 121 to 123 of 2011, decided on 16th April, 2012.

(On appeal from judgment dated 2-10-2009 of the Federal Service Tribunal, Islamabad, passed in Appeals Nos.331ÒCS/2007, 332ÒCS/2007 and 2173ÒCE/2005).

(a) Water and Power Development Authority (Water Wing) Service of Engineer Rules, 1968---

----R. 5(2)(e)(ii)---Constitution of Pakistan, Art. 212---Amendment in rules effecting promotion rights of employees retrospectively---Validity---Employees (respondents) were working as sub-engineers in WAPDA and were placed in BS-16--­WAPDA (appellant) made amendment in rule 5(2)(e)(ii) of WAPDA (Water Wing) Service of Engineer Rules, 1968, by which amendment condition of holding office in BS-16 was done away with and all sub-engineers who otherwise qualified were entitled for consideration for promotion to junior-engineers in terms of amended rule---Contentions of employees were that prior to the amendment, twenty six (26) vacancies were available, and employees were entitled to promotion on such vacancies on the basis of the seniority list; that after introduction of amended rule, those who did not fall within the seniority list of BS-16 were allowed to compete with the employees for promotion, and that amended rule could not be allowed to operate retrospectively to the disadvantage of the employees, who were entitled to promotion prior to the amendment against the vacant seats---Validity---Rules operated prospectively and if a right was created in favour of an employee under the old rule, it could not be taken away on the ground that the amended rule had allowed others to compete---Twenty six vacancies were available before the amendment of rule, and employees were entitled to promotion on such vacancies under the seniority list, but the department did not promote them without offering any plausible explanation---Amended rule did not permit the department to overlook the rights of employees created under the law by applying the amended rule to extend benefit to those who were not in run for promotion at the time when the right of the employees for promotion matured on basis of the seniority list---Finding of Tribunal was in conformity with the settled law and no exception could be taken to the same---Appeals were dismissed by Supreme Court with costs.

Dr. Muhammad Amjad v. Dr. Israr Ahmed 2010 SCMR 1466; Mrs. Farkhanda Talat v. Federation of Pakistan 2007 SCMR 886 and Luqman Zareen v. Secretary Education 2006 SCMR 1938 ref.

(b) Interpretation of statutes---

----Amendment of a statute/rule affecting right of individual---Scope---Any amendment which deprives a person of his right has to be construed prospectively.

Aurangzeb Mirza, Advocate Supreme Court for Appellants (in all appeals).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents (in C.A. 122 of 2011).

Abdur Rehman Siddiqui, Advocate Supreme Court for Respondents Nos.1, 7 to 13 (in C.A. No. 123 of 2011).

Respondents Nos.2, 3, 4 and 6 in person (in C.A. No.123 of 2011).

Date of hearing: 16th April, 2011.

2012 P L C (C.S.) 1300

[Supreme Court of Pakistan]

Present: Sarmad Jalal Osmany and Gulzar Ahmed, JJ

MUHAMMAD ZAHIR RAJA

Versus

FEDERATION OF PAKISTAN and others

Civil Appeal No. 134 of 2011, decided on 10th April, 2012.

(Against the judgment dated 22-3-2012 passed by the Federal Service Tribunal, Islamabad in Appeal No.704(R) CS/2008).

(a) Service Tribunals Act (LXX of 1973)---

----S. 4(1)(b)---Civil Servants Act (LXXI of 1973), S.9(1)---Constitution of Pakistan, Art. 212---Promotion, supersession in---"Eligibility for promotion" and "determination of fitness"---Distinction and scope---Determination of fitness of civil servant by Central Selection Board---Scope---Contentions of the civil servant (appellant) were that he had an excellent career and his PERs showed his integrity to be above board; that he was superseded on the ground of excellence and comparative merit despite the fact that nothing adverse vis-a-vis his integrity and efficiency was observed by the Central Selection Board, and that some of the civil servants who had been promoted, had adverse entries in their PERs as well as their pro formas prepared by the Central Selection Board---Validity---"Eligibility for promotion" and "fitness" were two separate criteria---Eligibility related primarily to the terms and conditions of service and their applicability to the concerned civil servants, whereas, question of fitness was a subjective evaluation on the basis of objective criteria and hence was not justiciable---Section 4(1)(b) of Service Tribunals Act, 1973, specifically barred right to appeal to the Tribunal against the order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher grade---Such discretion given to the concerned authorities in the matter of fitness etc. of a civil servant for promotion, had to be exercised in a fair, open and just manner which should be based on reasonable assessment of the civil servant's performance and such exercise should not be arbitrary or colorable in any manner---When considering the question of fitness, the criteria of excellence in favour of a particular candidate should be based on reason and there should be something in writing which should influence the Central Selection Board while exercising their discretion in favour of a particular candidate---In the present case, said exercise was entirely missing and civil servant's pro forma prepared by the Central Selection Board only contained a bald assertion that civil servant could not come up to the required threshold---Civil servant had an excellent record yet he was superseded on the policy of best of the best, whereas another civil servant who had adverse entries in his PERs, which were reproduced in the pro forma prepared by the Central Selection Board had been promoted---Such exercise of discretion by concerned authorities could not be supported on any reasonable interpretation of either the law or the facts of the case---Appeal was allowed by the Supreme Court, and directions were given to Central Selection Board to consider the case of the civil servant in question for promotion from BPS-19 to BPS-20 and if found fit for promotion, he would take seniority from the date his batch mates were promoted.

Secretary Revenue Division, CBR/Federal Board of Revenue, Islamabad v. Gul Muhammad and others 2011 SCMR 295; Tariq Aziz-ud-Din and others: in re 2010 SCMR 1301; Fazali Rehmani v. Chief Minister, N.-W.F.P., Peshawar and others PLD 2008 SC 769; Zafar Iqbal and another v. Director, Secondary Education, Multan Division and 3 others 2006 SCMR 1427 and Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 ref.

(b) Civil Servants Act (LXXI of 1973)----

----S. 9(1)---Right to promotion---Scope---Section 9(1) of the Civil Servants Act, 1973, provided a civil servant with the right to be considered for promotion if same was eligible on account of possessing the prescribed minimum qualification etc., however, civil servant had no vested right to be promoted.

Sahibzada Anwar Hamid, Advocate Supreme Court for Appellant.

Raja M. Aleem Abbasi, D.A.-G., M.S. Khattak, Advocate-on-Record and Zakaullah Jan, S.O. (Est.) for Respondents.

Date of hearing: 10th April, 2012.

2012 P L C (C.S.) 1477

[Supreme Court of Pakistan]

Present: Tassaduq Hussain Jillani, Tariq Parvez and Mian Saqib Nisar, JJ

Ch. LIAQUAT ALI and another

versus

PROVINCE OF PUNJAB and others

Civil Appeals Nos. 1288 and 1289 of 2008, decided on 10th July, 2012.

(On appeal from the judgment dated 7-4-2008 passed by Punjab Service Tribunal, Lahore in Appeals Nos. 2931, 2932 and 2933 of 2006).

Punjab Civil Servants Act (VIII of 1974)---

----Ss. 7(1) & 2(i)(b)--- Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 8---Inter se seniority---Appellants (civil servants) and respondents (civil servants) were appointed in BS-17 on temporary posts---Respondents were appointed on 'development' projects which were foreign funded and on closure of said project, they were adjusted against permanent posts on the basis of their length of service under the temporary projects, whereafter the respondents were placed senior to the appellants in the seniority list---Contentions of appellants were that respondents were working on 'development' projects of temporary nature and their salaries were paid from foreign monitory assistance, therefore, they were not civil servants in view of S.2(i)(b) of Punjab Civil Servants Act, 1974; that person appointed on a project post on year to year basis could not be assigned seniority vis-a-vis appointees on regular basis against permanent posts or against 'non-development' posts; that Service Tribunal was incorrect in finding that mere switching over of posts from 'development' to 'non-development' side did not alter the regular nature of appointments, terms and conditions of service or nature of functional unit/cadre and seniority of parties, and that delay in challenging seniority list could not be a basis for non-suiting the appellants as relegation of seniority was violative of law and was a recurring cause of action and could be challenged at any time---Validity---Relevant recruitment rules for the project created no distinction between 'development' and 'non-development' side---Contention of appellants that since the respondents were appointed against certain projects, which were abolished and were adjusted against certain posts after abolition of the earlier posts which they held and therefore, their seniority should be reckoned from the date of adjustment was neither borne out from the nature of the posts on which respondents were initially appointed nor it was so provided in the criterion of adjustment issued by the competent authority in the Provincial Government after abolition of said posts---Contention of appellants that since the respondents were initially appointed on a project, which was funded by a foreign donor, therefore, they could not be classified as appellants had no substance---Appellants had not referred to any order of the competent authority in the Provincial Government, which could warrant an interference that the appointment of respondents were against specific posts and on the completion of projects, their services could not be continued or which provided that the seniority of such officers would reckon from their adjustment---Initial appointments of respondents in BS-17 and their subsequent promotions in BS-18, were of earlier dates as against the appellants and both the parties were in the same functional unit---Departmental Promotion Committee or Provincial Selection Board had not varied the seniority of the appellants at any stage nor were they superseded---Seniority list published from time to time remained unchallenged by the appellants and in all such lists they were placed junior to the respondents and in such circumstances it was late in the day for appellants to challenge the seniority list after almost 15 years---No reference had been made by appellants to any rule or statutory provision which had been violated or contravened in upholding the impugned seniority list, wherein appellants had been placed junior to the respondents---Judgment of Service Tribunal was unexceptionable---Appeals were dismissed.

Sabir Zamir Siddiqui v. Abdul Malik PLD 1991 SC 226; Ahsanullah A. Memon v. Government of Sindh 1993 SCMR 982; Abdul Rashid Khan v. Muhammad Saleem Akhtar 1996 SCMR 1163; Muhammad Younas Jaffar v. Government of Pakistan PLD 1996 SC 86 and Din Muhammad v. Director-General Pakistan Post Office 2003 SCMR 333 ref.

Wazir Khan v. Government of N.-W.F.P. 2002 SCMR 889; Rashida Asif v. Aasia Gondal 2010 SCMR 450 and Ahmed Khan v. Secretary to Government 1997 SCMR 1477 rel.

Hafiz S.A. Rehman, Senior Advocate Supreme Court for Appellants.

Jawad Hassan, Additional A.-G. for Respondents Nos.1 to 3.

Shoaib Shaheen, Advocate Supreme Court for Respondents Nos.4 to 7.

Date of hearing: 10th July, 2012.

2012 P LC (C.S.) 326

[Supreme Court (AJ&K)]

Present: Khawaja Sha{iad Ahmed, C.J., Muhammad Azam Khan, Ch. Muhammad Ibrahim Zia and Khawaja Attaullah Chak, JJ

NARGIS AFTAB RAJA

Versus

JUDGE OF AZAD JAMMU AND KASHMIR HIGH COURT including Chief Justice/Chairman and Members of Azad Jammu and Kashmir Judicial

Officers Selection Board through Registrar, High Court, Muzaffarabad and 5 others

Civil Appeal No.128 of 2010, decided on 14th May, 2011.

(On appeal from the judgment of the Service Tribunal dated 4-3-2010 in Service Appeal No.309.

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)

---Ss. 42(11)(12) & 47---Civil service-.--Promotion---Appeal to Supreme Court--Appellant had been given proper position in the seniority list and also declared entitled for retrospective promotion---Appellant felt. aggrieved and claimed that she was entitled for retrospective promotion from the date on which respondents who were junior to her had been promoted---Service Tribunal had declared the appellant senior to the contesting respondent, matter of seniority had been settled, in circumstances---Service Tribunal had also computed the ad hoc service of the appellant and by extending the maximum benefit declared the appellant entitled for notional promotion---Judgment of the Service Tribunal, being consistent with the principles of law and justice, did not call for interference---Appeal was dismissed.

Ghulam Rasool's case 2006 SCR 376 distinguished.

Raja Muhammad Hanif Khan, Advocate for Appellants.

Raja Gul Majeed Khan, Advocate-General and Mushtaq Ahmed Janjua, Advocate for Respondents.

Date of hearing: 11th April, 2011.

2012 P L C (C.S.) 336

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. Ch. Muhammad Ibrahim Zia and

Khawaja Attaullah Chak, JJ

MUHAMMAD ASHRAF QURESHI

Versus

COMPETENT AUTHORITY for (Judicial Officers) of AJ&K Judicial Service Department/High Court of Azad Jammu and Kashmir, Muzaffarabad and 3 others

Civil Appeal No.10 of 2010, decided on 26th August, 2011.

(On appeal from the judgment of the Service Tribunal dated 15-10-2009 in Service Appeal No.597 of 2008)

(a) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----Ss. 3, 9 & 10---Azad Jammu and Kashmir Service Tribunals Act (XXII of 1975), S.4---Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976 R.7(F)---Compulsory retirement from service---Non-signing of memo. of appeal---Representation preferred by civil servant against order of his compulsory retirement having been dismissed by the competent authority, civil servant had filed appeal before Service Tribunal---Maintainability of appeal was objected to on the ground that memo. of appeal was not signed by the appellant/civil servant which was mandatory---Validity---Memo. of appeal had been verified and signed by the appellant at its foot, at the end of the prayer clause and before the verification, name of the appellant though was written, but his signature was missing---Signing the verification by the appellant was a substantial compliance of rule---Mere absence of signature at the end of the prayer clause, did not amount to non-compliance of R.7(F) of Azad Jammu and Kashmir Service Tribunal (Procedure) Rules, 1976 because said rule itself did not call for twice signing the memo of appeal---Moreover, no penalty, for failure to sign had been provided by the statute---Preliminary objection raised by respondent authority with regard to maintainability of appeal was repelled, in circumstances.

Ghulam Mohi-ud-Din's case PLD 1988 SC (AJ&K) 42; Muhammad Reaz Khan's case PLD 1990 SC (AJ&K) 13 and Muhammad Anwar Khan's case PLD 2002 SC (AJ&K) 491 rel.

(b) Azad Jammu and Kashmir High Court Procedure Rules, 1984---

----Rr. 111, 112, 113, & 114---Azad Jammu and Kashmir Judicial Service Rules, 1999---Azad Jammu and Kashmir Service Tribunals (Procedure) Rules, 1976, R.8---Powers of Chief Justice of High Court as competent authority---According to amended provisions of R.114 of the Azad Jammu and Kashmir High Court Procedure Rules, 1984, the powers and functions under Azad Jammu and Kashmir Judicial Service Rules, 1999, exercisable by the High Court had been specifically vested in the Chief Justice---Chief Justice, in circumstances, was the competent authority.

(c) Judicial Officers' Protection Act (XVIII of 1850)---

----S. 1---Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001, Ss.2(b) & 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Compulsory retirement on allegation of misconduct---Protection of Judicial Officer---Appellant, a Civil Judge, having been found guilty of misconduct, was compulsorily retired from service---Appellant claimed that allegation against him did not fall within the mischief of misconduct because all the alleged acts were performed by him in judicial capacity as Judicial Officer, which had protection under the provisions of Judicial Officers' Protection Act, 1850---Validity---Provisions of S.1 of Judicial Officers' Protection Act, 1850 had clearly connoted that the immunity was provided only to the extent of civil liability with the condition that if the acts were done in good faith---No immunity from criminal liability or disciplinary actions or misconduct had been provided by the said Act---Claim of the appellant that his alleged acts of misconduct did not fall within the mischief of the "misconduct" due to the provisions of Judicial Officers' Protection Act, 1850, was without any substance.

(d) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----Ss. 3, 5 & 10---Compulsory retirement---Appellant who was compulsorily retired from service on allegation of misconduct, had raised legal question that list of allegations and show-cause notice had not been served by the authority whereas under the provisions of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001, it was mandatory that list of allegations and show-cause notice must be served upon accused by the authority; and any departure from the said statutory provision would vitiate the whole proceedings---Under provisions of S.5 of Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001, Inquiry Officer or Inquiry Committee would have to communicate to the accused the charge and the statement of allegations specified in the order of inquiry passed by the competent authority---In the present case, communication of statement of allegation by the Inquiry Officer was in accordance with provisions of law---Communication of the statement of allegations by the Authority was not the requirement of law---Appellant himself had pleaded that after submission of the recommendations of the Inquiry Officer, the authority had also served upon him the show-cause notice and provided the opportunity of hearing---No departure was made in the proceedings from the mandatory statutory provisions, in circumstances.

(e) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----S. 2(b)---Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1973, R.2(D)---Misconduct---Term "misconduct" had very broad scope and it included the conduct prejudicial to good order or service discipline or contrary to the Government Servants (Conduct) Rules.

(f) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----Ss. 2(b), 3, 5 & 10---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42---Compulsory retirement from service on allegation of misconduct---Appeal to Supreme Court---Appellant who was a Civil Judge, having been found guilty of misconduct, was compulsorily retired from service after issuing him show-cause notice and holding inquiry against him---Appellant had not denied the factual happening of alleged acts of misconduct as incorporated in the statement of allegations---At three different stages, the concerned authorities (Inquiry Officer, Authority and Service Tribunal) had concurred that explanations and reasoning extended by the appellant, were not acceptable---Explanation extended to by the appellant, appeared to be a lame excuse, which did not match with law knowing person and specially the Judicial Officer of status of a Senior Civil Judge---Judgment in question was a speaking one and the inquiry report was well reasoned, while the Authority had passed orders after due application of mind providing the appellant the opportunity of hearing---Appellant had failed to bring on record anything to prove alleged discriminatory treatment---In absence of any proof the question of discriminatory treatment would not arise---Conduct of the appellant was not only contradictory, but also not like a Judicial Officer---Ignorance of law was no excuse---While a lay man could not claim the excuse of ignorance of law how such excuse could be available to a Judicial Officer like the appellant---Appellant had failed to point out any illegality in the impugned judgment of Service Tribunal---Appeal was dismissed.

PLD 1988 SC (AJ&K) 42; PLD 1963 AJK 81; 1980 CLC 1946; 1989 MLD 3319; 2005 PLC (C.S.) 1015; 1993 SCMR 633; 2009 SCR 18; 2004 PLC (C.S.) 1378 and PLD 70 Pesh. 81 ref.

Said Muhammad Khan v. Muhammad Yousaf and 2 others 2007 SCR 235 and Ch. Shabbir Hussain's case PLD 2004 SC 191 rel.

Appellant in person.

Sardar Riaz Khan, Advocate for Respondents.

Date of hearing: 25th July, 2011.

2012 P L C (C.S.) 383

[Supreme Court (AJ&K)]

Present: Khawaja Shahad Ahmed, C.J. and Muhammad Azam Khan, J

Civil Appeal No.139 of 2008

ZAKER HUSSAIN SHAH and 12 others

Versus

MUHAMMAD ISMAIL and 14 others

(On appeal from the judgment of the Service Tribunal dated 22-10-2008 in Service Appeal No.88 of 2007).

Civil Appeal No.51 of 2009

RABNAWAZ and 4 others

Versus

IMTIAZ HUSSAIN and 10 others

(On appeal from the judgment of the Service Tribunal dated 9-2-2009 in Service Appeal No.28 of 2007).

Civil Appeals Nos.139 of 2008 and 51 of 2009, decided on 7th March, 2011.

(a) Police Rules, 1934---

----Ch. XIII, Rr. 13.1, 13.7 & 13.8---Selection of constables for admission to Lower Training Course and their promotion as Head Constable after getting such training---Scope---List-B would contain names of constables considered suitable for such course---Constable below age of 33 years could not be entered in List-B---Seniority in age in List-B, but not serial-wise seniority therein would be prior consideration for such selection---List-C would be prepared on basis of merit determined at time of passing such training, but not on basis of their serial-wise seniority of constables in List-B---Admission of constables in List-C would not be relevant for their promotion as Head Constables, rather the order of merits in which they passed such course would be considered in comparing qualifications---When qualifications of constables were found to be equal, then seniority in Police Force would a deciding factor for promotion of Constable as Head Constable---Selection from one rank to another and from one grade to another in same rank would be made by selection tempered by seniority, but efficiency and honest would be main factors governing such selection---Principles.

Muhammad Riaz Khan v. Inspector-General of Police and 19 others 2010 SCR 131; Zahid Mahmood v. Muhammad Sabir Khan and 5 others 2000 YLR 1011; Azad Government and others v. Farhat Shaheen 2007 SCR 62 and Ch. Abdul Latif Superintendent, Central Excise and Sales Tax, Mirpur Circle AJ&K and others v. Secretary Azad Jammu and Kashmir Council and others 2000 PLC (C.S.) 210 ref.

Ch. Abdul Latif Superintendent, Central Excise and Sales Tax, Mirpur Circle AJ&K and others v. Secretary Azad Jammu and Kashmir Council and others 2000 PLC (C.S.) 210 rel.

(b) Estoppel---

----No estoppel against law---Condition imposed against clear legal provisions would not create estoppel---Illustration.

Raheela Khalid v. Azad Government and 5 others 2004 PLC (C.S.) 973 and Ikram Bus Service and others v. Board of Revenue, West Pakistan and others PLD 1963 SC 564 rel.

(c) Pleadings---

----Order not challenged by a party in pleadings---Effect---Court could not travel beyond the pleadings of parties and set aside such order---Illustration.

Muhammad Adalat v. Munshi Khan and 3 others 2000 YLR 2774; Muhammad Hussain v. Abdul Majid and others 1993 SCR 319; Muhammad Amin v. Muhammad Yunus 1993 SCR 340 and Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government through Chief Secretary, Muzaffarabad and 3 others PLD 1994 SC (AJ&K) 13 rel.

Sayed Nazir Hussain Shah Kazmi, Advocate for Appellants (in Civil Appeal No.139 of 2008).

M. Tabassum Aftab Alvi, Advocate for Respondents Nos.1 to 5 (in Civil Appeal No.139 of 2008).

Raja Gul Majeed Khan, Advocate-General for Respondents Nos.6 to 8 (in Civil Appeal No.139 of 2008).

Kh. Muhammad Nasim, Advocate for Appellants (in Civil Appeal No.51 of 2009).

M. Tabassum Aftab Alvi, Advocate for Respondents Nos.1 to 8 (in Civil Appeal No.51 of 2009).

Raja Gul Majeed Khan, Advocate-General for Respondents Nos.9 to 11 (in Civil Appeal No.51 of 2009).

Date of hearing: 9th February, 2011.

2012 P L C (C.S.) 439

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Chaudhry Muhammad Ibrahim Zia, J

KAMAL SUBHANI

Versus

MUHAMMAD RAMZAN and 5 others

Civil Appeal No.144 of 2008, decided on 18th October, 2011.

(On appeal from the judgment of the High Court, dated 8-9-2008 in Writ Petition No.209 of 2007)

Azad Jammu and Kashmir Public Service Commission (Procedure) Rules, 1994---

----R. 12---Appointment of civil servants on basis of District-wise quota---Notifications dated 27-3-2003 and 18-1-2007 issued by Government in respect of such quota system---Duty of Public Service Commission stated.

Civil service structure in Azad Kashmir is based on quota system. Apart from the notifications in respect of quota system from time to time, right from 1971 to 1997 in respect of administrative units, Rule 12 of the Public Service Commissioner (Procedure) Rules, 1994 provides the unit-wise quota and protects the same. Rule 12, in unequivocal terms postulates that it is the duty of the department seeking recommendations from the Public Service Commission to determine the quota of each District on the basis of sanctioned strength of posts. The Supreme Court in a number of cases has protected the quota system. While protecting the quota system, the Government has made a departure through notification dated 18th January, 2007 stating therein that when a suitable candidate is not available from a particular District/Unit, a candidate next on merit from other District/Unit can be appointed against the post of the said District/Unit and when any other seat of that unit is advertised, it shall be deducted from the quota of that District/Unit and it shall go to the quota of the District/Unit against which a candidate of other District/Unit was appointed.

There are different categories of services. For appointment of school teachers, lecturers, doctors etc., every year a number of posts are created and the posts reserved for quota of each District are in a large number. If in the result of a particular advertisement, the seat of a teacher, lecturer, doctor or engineer from one District/Unit goes to any other District/Unit on the ground that no suitable candidate was available from the said District/Unit, it shall have no harm because in the near future there is likelihood of creation of other seats/posts in the same discipline and one seat can go to the quota of a District/Unit where a candidate of other District/Unit was appointed, but in some cases where the number of seats as compared to units is less, then the rule laid down in notification dated 18th January, 2007 is not applicable. For such like situation, the Government has formulated the policy and a policy notification was issued vide No. Admin. A.R.4/133/94, dated 27th March, 2003.

Where the number of posts is less than the number of units, then only one person from the said unit can be appointed against the post although more than one person has qualified the test and interview. If the appointments are made against the seats/posts of other District/Unit in the light of Notification dated 18th January, 2007, where the number of posts is less than the number of units, particularly when there is no likelihood of creation of any other post in near future, that unit will be deprived of its rights and it will be a sheer violation of quota system.

Khurshid-ul-Hassan v. Azad Government and another 1997 PLC (C.S.) 468; Muhammad Shafique and others v. Azad Government and others Civil Appeal No.19 of 2010 and Suleman Ahmed v. Tanveer Ahmed Mir and 3 others 2002 PLC (C.S.) 714 ref.

Umar Hayat v. Azad Government and 3 others 1999 PLC (C.S.) 93; Muhammad Ejaz Khan and 12 others v. Mushtaq Ahmad Khan and 10 others 2010 SCR 201 and Azad Government and 2 others v. Muhammad Naseer Chaudhry and 2 others 2010 SCR 186 rel.

Sardar Muhammad Resham Khan for Appellant.

Sardar Abdul Sammie Khan for Respondent No.1.

Mansoor Pervaiz Khan for Respondents Nos.2 to 6.

Date of hearing: 11th October, 2011.

2012 P L C (C.S.) 755

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

Civil P.L.A. No.257 of 2011

SARFRAZ AHMED KHAN

Versus

AZAD GOVERNMENT and others

(Petition for leave to appeal from the order of the High Court dated 23-7-2011 in Writ Petition No.94 of 2007).

Civil P.L.A. No.286 of 2011

EJAZ MAQBOOL

Versus

PUBLIC SERVICE COMMISSION and others

(Petition for leave to appeal from the order of the High Court, dated 27-7-2011 in Writ Petition No.207 of 2009)

Civil P.L.A. No.288 of 2011

Syed ABDUL HAKIM SHAH

Versus

AZAD GOVERNMENT and others

(Petition for leave to appeal from the order of the High Court, dated 1-8-2011 in Writ Petition No.1372 of 2010)

Civil P.L.A. No.313 of 2011

SAMINA NAZ

Versus

AZAD GOVERNMENT and others

(Petition for leave to appeal from the order of the High Court, dated 12-8-2011 in Writ Petition No.934 of 2008)

Civil P.L.A. No.314 of 2011

NASEER HAIDER MALIK

Versus

PUBLIC SERVICE COMMISSION and others

(Petition for leave to appeal from the order of the High Court, dated 12-8-2011 in Writ Petition No.123 of 2009)

Civil P.L.A. No.278 of 2011

KHIZER HAYAT

Versus

AZAD GOVERNMENT and others

(Petition for leave to appeal from the order of the High Court, dated 23-7-2011 in Writ Petition No.94 of 2007)

Civil P.L.A. No.291 of 2011

FARHAT YASMIN

Versus

PUBLIC SERVICE COMMISSION and others

(Petition for leave to appeal from the order of the High Court, dated 1-8-2011 in Writ Petition No.1056 of 2010)

Civil P.L.A. No.242 of 2011

SHAHZAD IKRAM

Versus

AZAD GOVERNMENT and others

(Petition for leave to appeal from the order of the High Court, dated 23-7-2011 in Writ Petition No.94 of 2007)

Civil P.L.A. No.274 of 2011

Raja SAJID KHAN

Versus

PUBLIC SERVICE COMMISSION

(Petition for leave to appeal from the order of the High Court, dated 23-7-2011 in Writ Petition No.917 of 2010)

Civil P.L.As. Nos.257, 286, 288, 313, 314, 278, 291, 242 and 274 of 2011, decided on 21st November, 2011.

(a) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R. 23---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Appointment on ad hoc basis---Petitioners had alleged that Education Department, with mala fide intention, had failed to advertise all the posts which were available and that the department withheld some posts with the intention to appoint some of their favourites---Petitioners had failed to bring on record any other material wherefrom it could be ascertained that any post which was available, was not advertised---Initially the burden of proof was on the party who alleged a fact---If the party, would discharge the burden, then it would shift on the other party---Petitioners had failed to substantiate their claim from the record that the posts had been withheld by the department---Perusal of the record produced by the Education Department proved that at the time of relevant advertisement, no posts were withheld by the department---Petitions were dismissed.

(b) Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977---

----R. 23---Appointment on ad hoc basis---Rule 23 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, whereunder ad hoc appointment was made had provided that, when a post was required to be filled in the appointing Authority, would forward a requisition to the Selection Authority immediately; and after requisition was sent to the Selection Authority the Appointing Authority, if considered necessary in the public interest would fill the post on ad hoc basis for a period not exceeding six months---Laws of the State would equally apply to all the citizens; it was the requirement of the law that al the posts which were vacant at the time of sending the requisition to the Public Service Commission, would be requisitioned and the posts be advertised/published in newspapers of mass circulation---If any post was available at the time of sending the requisition to the Public Service Commission, and it was not sent or withheld, it would be a mala fide action and such action was liable to be declared as without lawful authority.

Ch. Muhammad Latif, Advocate for Petitioner (in Civil P.L.A. No.257 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.257 of 2011).

Mushtaq Ahmed Janjua, Advocate for Petitioner (in Civil P.L.A. No.286 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.286 of 2011).

Sadaqat Hussain Raja, Advocate for Petitioner (in Civil P.L.A. No.288 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.288 of 2011).

Mansoor Pervaiz Khan, Advocate for Petitioner (in Civil P.L.A. No.313 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.313 of 2011).

Sardar Karam Dad Khan, Advocate for Petitioner (in Civil P.L.A. No.314 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.314 of 2011).

Ch. Muhammad Latif, Advocate for Petitioner (in Civil P.L.A. No.278 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.278 of 2011).

Sardar Karam Dad Khan, Advocate for Petitioner (in Civil P.L.A. No.291 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.291 of 2011).

Ch. Muhammad Latif, Advocate for Petitioner (in Civil P.L.A. No.242 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.242 of 2011).

Ch. Muhammad Latif, Advocate for Petitioner (in Civil P.L.A. No.274 of 2011).

Meer Sharafat Hussain, Advocate for Respondents (in Civil P.L.A. No.274 of 2011).

Date of hearing: 16th November, 2011.

2012 P L C (C.S.) 795

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Raja Saeed Akram Khan, J

EHSAN-UR-REHMAN and 10 others

versus

ARSHAD ALI KHAN and 5 others

Civil Appeal No.90 of 2010, decided on 13th January, 2012.

(On appeal from the judgment of the High Court, dated 9-12-2009 in Writ Petitions Nos.93 and 185 of 2006).

(a) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Civil service---Appointment---Petitioners had taken contradictory stand in their writ petition; at one side they had challenged whole proceedings of interview conducted by the Selection Committee on the ground that two persons, who were not members of the Committee participated in interview proceedings, result prepared by the said Committee was illegal, while on the other side, they had prayed that the merit list prepared by the said Committee be corrected---Validity---One could not blow hot and cold in one breath---Petitioners could not take contradictory stand in writ petition---Either they had to challenge the proceedings of Selection Committee on the ground that it was not legally constituted or they could pray for correction of merit list---Order accordingly.

Muhammad Aftab Khan v. District Education Officer and 2 others 2001 PLC (C.S.) 28; Kh. Manzoor Qadir v. Azad Government and others 2010 SCR 215 and Aziz Ahmed v. Chairman Board of Intermediate and Secondary Education Gujranwala 1997 PLC (C.S.) 356 rel.

(b) Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 44---Writ petition---Petition for writ of quo-warranto---Maintainability---Scope---Civil service---Appointment---Petitioners had claimed different reliefs: Firstly that the proceedings of Selection Committee be declared illegal and as a result the appointment orders of the respondents be set aside; secondly that the merit list prepared by Selection Committee be corrected; thirdly in the result of corrected merit list their appointment orders be issued against the reserved seats; fourthly a writ of quo warranto be issued against the respondents on the ground that as to under what authority of law they were holding the posts---Petitioners also sought relief by way of writ of certiorari for cancellation of appointment orders of the respondents---Validity---Aggrieved person, no doubt, could seek a relief by way of writ of certiorari and any person could file a writ of quo warranto, but a person could not seek contradictory reliefs at one time---Petitioners, if claimed to be aggrieved, could file writ petition against those who were appointed against District quota in question---Petitioners could not be termed as 'aggrieved person' against the respondents belonging to other Districts---No doubt it was not necessary to be an aggrieved person to file a petition for writ of quo warranto, any State subject could file a petition for writ of quo warranto requiring a person functioning in connection with the affairs of the State or Government challenging the authority of his holding the office, but a person who sought a relief for himself, could not file writ petition of quo warranto---Since the petitioners had sought relief for themselves, they were not entitled to writ of quo warranto; their writ petition to the extent of quo warranto, was not maintainable.

Raja Muhammad Azad Khan v. Vice Chancellor and another 1999 SCR 270 and Muhammad Yaqoob Khan v. Secretary Forest/Tourism AJ&K and others 1999 MLD 1862 rel.

(c) Qanun-e-Shahadat (10 of 1984)---

----Art. 114---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.44---Writ petition---Civil service---Appointment---Acquiescence and estoppel---Applicability---Scope---Petitioners, after participating in the interview could not attain required merit position; they had acquiesced and were estopped from challenging the proceedings of Selection Committee---Writ petitions were liable to be dismissed on that ground---If a person participated in the proceedings and remained unsuccessful in getting the desired result, later on he could not turn round and challenge the proceedings on the ground that same were not conducted by the legally constituted body.

Malik Khalid Mahmood v. Abdul Majid Butt and 4 others 1997 MLD 2921; Abdul Qadir v. Abdul Karim and 4 others 1999 PLC (C.S.) 947 and Sardar Zaheer Ahmed Khan and another v. Azad Government and 4 others 2005 SCR 89 rel.

Raza Ali Khan, Advocate for Appellants.

Muzaffar Ali Zafar, Additional Advocate-General for Respondents Nos.3 to 5.

Mushtaq Ahmed Janjua, Advocate for Respondents Nos.1 and 2.

2012 P L C (C.S.) 1157

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

ZAFAR IQBAL

Versus

SECRETARY EDUCATION OF AZAD JAMMU AND KASHMIR (COLLEGES), MUZAFFARABAD AZAD KASHMIR and 5 others

Civil Appeal No.17 of 2011, decided on 11th February, 2012.

(On appeal from the judgment of Service Tribunal, dated 8-12-2010 in Service Appeal No.414 of 2010).

Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----S. 2(1)(b)(ii)---Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, R.16---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.47 & 49---Temporary appointment without advertising the post---Appellant was appointed temporarily, and on the recommendations of Selection Committee, his services were regularized, but Departmental Authority appointed the respondent against the said post---Initial appointment order of the appellant was issued without advertising the post, but order was mere 'Iwzi Taqaruri' ( )---Under R.16 of Azad Jammu and Kashmir Civil Servants (Appointment and Conditions of Service) Rules, 1977, advertisement of vacancy was precondition for the appointment---No person appointed as "Iwzi" ( ) could claim permanent induction against the post without following due process of law---Appellant had failed to bring on record any valid order to substantiate his stand that he had been permanently appointed---Sub-clause (ii) of clause (b) of S.2 of Azad Jammu and Kashmir Civil Servants Act, 1976, had excluded a person who was employed on contract, or on work charge basis, or who was paid from contingencies---"Iwzi" ( ) appointment order of the appellant, had clearly revealed that he was paid from the contingency---Person who was not permanently appointed against the post or who was paid from contingencies, was not civil servant for the purpose of right of appeal before the Service Tribunal---Service Tribunal, in circumstances, had rightly concluded that the appellant had got no locus standi to file appeal before the Service Tribunal.

Kh. Tariq Saeed, Advocate for Appellant.

Kh. Muhammad Nasim, Raza Ali Khan and Meer Sharafat Hussain, Advocates for Respondents.

Date of hearing: 12th December, 2011.

2012 P L C (C.S.) 1264

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia, Actg. C.J. and Raja Saeed Akram Khan, J

MUHAMMAD YOUNUS and others

Versus

TRANSPORT OFFICER, CENTRAL TRANSPORT POOL/AUTHORITY, CENTRAL TRANSPORT POOL, MUZAFFARABAD and others

Civil Appeals Nos.148 and 149 of 2011, decided on 21st February, 2012.

(On appeal from the judgment of Service Tribunal dated 27-7-2011 in Service Appeal No.285 of 2006).

(a) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----S. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47---Removal from service---Reinstatement by Service Tribunal---Appeal to Supreme Court---Limitation---Employee who was removed from service, filed appeal before the Service Tribunal, which through the impugned judgment set aside punishment of removal from service and reinstated him into service, but period spent in between his removal and reinstatement was treated as leave without pay---Department filed appeal before the Supreme Court against judgment of Service Tribunal whereby he was ordered to be reinstated in service---Validity---Appeal was barred by 4 days and deducting one day which had been spent in obtaining certified copy of impugned order, appeal was time-barred---For condonation of delay, the party had to explain the delay of each day and every day to satisfy the court, whereas in the present case neither any explanation had been tendered nor any request for condonation of delay in filing appeal had been made---Appeal being time-barred was not maintainable, in circumstances.

(b) Azad Jammu and Kashmir Removal from Service (Special Powers) Act, 2001---

----S. 3---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.47---Removal from service---Reinstatement by Service Tribunal---Employee who was removed from service filed appeal to Service Tribunal which set aside the punishment of removal from service, reinstated the employee into service from the date of removal, but the period spent in between his removal and reinstatement was treated as leave without pay---Employee had partly challenged the impugned judgment before the Supreme Court to the extent of treating the period of absence from removal till reinstatement, as leave without pay---Findings recorded by the Service Tribunal to the extent of reinstatement and setting aside the removal from service, which were based on record, did not call for any interference by Supreme Court and were upheld---Finding of the Service Tribunal for treating the period of alleged absence from date of removal till reinstatement as leave without pay, was not consistent with the principles of law---When the punishment order passed by departmental Authority was found to be illegal; and consequently, employee was reinstated, the employee was entitled to all the emoluments---Accepting appeal of the employee, impugned judgment of Service Tribunal was modified; and it was held by the Supreme Court that employee was entitled to all the emoluments according to law for the period consumed in between removal and reinstatement---Period of alleged absence would be treated as leave, admissible under Rules.

PLD 2003 SC 266; 1999 SCMR 1873; Sirajuddin v. Government of Sindh 1999 PLC (C.S.) 600 and Ghulam Qadir v. Nazamur Rehman 2003 SCMR 726 rel.

Abdur Rashid Abbasi, Advocate for Appellants (in Civil Appeal No.148 of 2011).

Raja Ansar Tahir Khan, Advocate for Respondents (in Civil Appeal No.148 of 2011).

Raja Ansar Tahir Khan, Advocate for Appellants (in Civil Appeal No.149 of 2011).

Abdur Rashid Abbasi, Advocate for Respondents (in Civil Appeal No.149 of 2011).

Date of hearing: 14th February, 2012.

2012 P L C (C.S.) 1412

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J., Ch. Muhammad Ibrahim Zia and Raja Saeed Akram Khan, JJ

Sardar KHURSHID HUSSAIN, DEPUTY INSPECTOR GENERAL

versus

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 4 others

Civil P.L.A. No.14 and Civil Miscellaneous No.13 of 2012, decided on 2nd February, 2012.

(On appeal from the judgment of Service Tribunal dated 16-1-2012 in Service Appeal No.67 of 2012).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 47---Civil service---Retirement---Dispute regarding date of birth---Petitioner who was retired vide notification after attaining age of superannuation, had challenged said notification of retirement alleging that his date of birth had been wrongly recorded in his Service Book---Date of birth as recorded, on the basis of which the petitioner was retired from service was 15-1-1952, while the petitioner had claimed his date of birth as 15-1-1956---Petitioner had served more than 40 years in the Police Department, but had not timely applied for correction of his date of birth as recorded---Petitioner had himself applied for issuance of duplicate copy of his Matriculation Certificate and upon his application, the Board of Education, verified his date of birth as 15-1-1952---Petitioner raised dispute regarding the correction of his date of birth before competent Authority, just less than a one month's time before his retirement---As per latest verification issued by the Board of Education, petitioner's date of birth was 15-1-1952 and that verification had been issued after holding an inquiry---Unless any contrary conclusion drawn by the Board of Education, was brought on record, said verification could not be ignored as the most relevant and competent Authority/Institution was the Board---If the date of birth 15-1-1956, as contended by the petitioner, was considered correct, then his recruitment/induction in the department would be in 15 years age, while according to statutory provision, no person could be inducted into service, who was found less than 18 years of age---No illegality was in the impugned judgment of Service Tribunal---No substantial question of law of public importance was involved in the petition for leave to appeal, which was dismissed, in circumstances.

Dr. Khawaja Muhammad Aslam v. Abdul Rauf Khan and 6 others 2000 YLR 1005 rel.

Ch. Muhammad Taj, Advocate for Petitioner.

Asghar Ali Malik, Advocate for Respondents.

Date of hearing: 31st January, 2012.

2012 P L C (C.S.) 1426

[Supreme Court (AJ&K)]

Present: Khawaja Shahad Ahmed, C.J. and Ch. Muhammad Ibrahim Zia, J

Syed RIAZ-UL-HASSAN

versus

AZAD GOVERNMENT through Chief Secretary Muzaffarabad and 4 others

Civil Appeal No.26 of 2010, decided on 1st March, 2011.

(On appeal from the judgment of the High Court dated 10-9-2009 in Writ Petition No.306 of 2008).

Azad Jammu and Kashmir (Terms and Conditions of Service) Rules, 1977---

----R.9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Ss.42 & 44---Promotion---Writ jurisdiction of High Court---Scope---Appellant, who initially was inducted into service as Librarian B.16 in Education Department, later on was granted grade B-17 and he was transferred for a period of 6 months in a National Library at place 'J' and through another notification he was permanently appointed by transfer in transferee library---When the post of Deputy Director BPS-18 became vacant in transferee library, the appellant claimed to be promoted to that post of Deputy Director---Case of appellant was not considered and he filed writ petition which was also dismissed by High Court---Validity---According to Rules, the post of Deputy Director BPS-18 was to be filled by promotion on the basis of selection on merit from amongst Librarians BPS-17, with five years' service and the appellant fulfilled all the required conditions; he had legal right to be considered for promotion---Writ petition was dismissed by the High Court on the sole ground that order of appointment of the appellant in transferee Library was issued without recommendation of the respective Selection Board---Authorities had not placed on record any document to prove that the matter of promotion of appellant had been considered and resolved by the authorities---When the authorities had failed to resolve the matter relating to the terms and conditions of a civil servant, High Court could, in appropriate cases, in absence of any other adequate remedy could direct the authorities for deciding, the matter in either way---Appellant had not approached the High Court for implementation of the notification, whereby he was permanently appointed by transfer in transferee Library, but he filed writ petition for direction to the authorities for disposal of his processed case relating to promotion against the post of Deputy Director---If the authorities had issued the notification in violation of the prescribed mode on that pretext, civil servant could not be left to the arbitrary discretion of the authorities for an indefinite period---Impugned judgment of High Court was vacated by the Supreme Court and authorities were directed to properly attend to grievance of the appellant with regard to his claim for promotion against the post of Deputy Director, BPS-18 according to rules and law on the subject.

Kh. Muhammad Nasim Advocate for Appellant.

Muhammad Yaqoob Khan Mughal, Advocate and Syed Ejaz Hussain Gillani, Additional Advocate-General for Respondents.

Date of hearing: 23rd December, 2010.

2012 P L C (C.S.) 1446

[Supreme Court (AJ&K)]

Present: Raja Saeed Akram Khan, J

MISBAH MUSHTAQ

versus

D.P.I. COLLEGES, AZAD JAMMU AND KASHMIR, MUZAFFARABAD and 2 others

Civil Petition for Leave to Appeal No.15 of 2012, decided on 8th February, 2012.

(Petition for leave to appeal from the judgment of the Service Tribunal dated 25-1-2012 in Service Appeal No.944 of 2011).

Azad Jammu and Kashmir Civil Servants Act (VI of 1976)---

----S. 9---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Transfer---Petitioner was transferred from the college at place 'M', to the one at place 'I'---Said transfer order was assailed by the petitioner before the Service Tribunal---Tribunal dismissed appeal of the petitioner---Validity---No element of political victimization was found in the case---Under S.9 of Azad Jammu and Kashmir Civil Servants Act, 1976, every civil servant would be liable to serve anywhere within or outside Azad Jammu and Kashmir in any post under the Government---Normal tenure of stay of a civil servant at one station though should not be less than three years, but, in the exigency of the service, a transfer could be made---Postings and transfers, exclusively fell under the discretion and domain of competent Authority which must not be exercised in an arbitrary or fanciful manner, but should be exercised judiciously and in accordance with settled norms of justice, equity and fairplay---Order accordingly.

Muhammad Fazil v. Kishwar Sikandar and 6 others 2004 PLC (C.S.) 1047; Fayyaz Ahmad v. Government of Punjab 1991 PLC (C.S.) 153 and Zahid Akhtar v. Government of Punjab through Secretary, Local Government and Rural Development, Lahore and 2 others PLD 1995 SC 530 rel.

Meer Sharafat Hussain, Advocate for Petitioner.

Raza Ali Khan, Advocate for Respondent No.3.

Date of hearing: 8th February, 2012.

2012 P L C (C.S.) 1456

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, C.J. and Ch. Muhammad Ibrahim Zia, J

HUSSAIN KHAN and 57 others

versus

AZAD GOVERNMENT and 9 others

Civil P.L.A. No.264 and Civil Miscellaneous No. 178 of 2011, decided on 18th November, 2011.

(P.L.A. from the judgment of High Court dated 4-11-2008 in Writ Petitions Nos.235, 239 and 240 of 2007).

Azad Jammu and Kashmir Civil Servants Act (VI of 1976)--

----S. 4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42(12)---Ad hoc appointment---Request for permanent induction---Petitioners who were appointed on ad hoc basis after test and interview had contended that their period of ad hoc service was extended from time to time and sought direction to the concerned authority, not to conduct test and interview in the light of fresh advertisement to the extent of posts held by them; and that recommendation be sent to Public Service Commission for their permanent induction against the posts occupied by them---Division Bench of the High Court dismissed all the writ petitions---Validity---All the appointments in the civil service, were made on the basis of merits determined in the open competition---Selection on merits was instrumental in creating necessary confidence and independence to perform the functions as a civil servant particularly under the Rules of Business---Purpose of appointment on the basis of merits determined in open competition, was that all the civil servants appointed after open competition should carry on the administration independently---Public Service Commission, was an important organ of the State for recruitment in civil service; it was a constitutional body under Azad Jammu and Kashmir Public Service Commission (Functions) Rules, 1978, all the posts in grade-B-16 and above fall within the purview of Public Service Commission, which was empowered to conduct tests and interview for recruitments of civil servants---No legal question being involved in the petition for leave to appeal, same was dismissed.

Dr. Navida Tufail and others v. Government of Punjab and others 2003 SCMR 291 ref.

Azad Jammu and Kashmir Government v. Javed Iqbal Khawaja and another 1996 PLC (C.S.) 155 and Azad Govt. and others v. Muhammad Younus Tahir and others 1994 CLC 2339 rel.

Sardar Abdul Sammie Khan and Ch. Muhammad Latif Advocates for Petitioners.

Meer Sharafat Hussain Advocate for Respondents.

Date of hearing: 18th November, 2011.

2012 P L C (C.S.) 1465

[Supreme Court (AJ&K)

Present: Ch. Muhammad Ibrahim Zia, J

MUHAMMAD IRSHAD KHAN

versus

PUBLIC SERVICE COMMISSION, AZAD JAMMU AND KASHMIR through Chairman and 3 others

Civil P.L.A. No.152 of 2011, decided on 1st August, 2011.

(Petition for Leave to appeal against the judgment of the High Court dated 7-4-2011 in Writ Petition No.739 of 2010).

Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974)---

----S. 42(12)---Civil service---Appointment---Public Service Commission conducted examination for recruitment of Civil Judges---Petitioner who competed for the appointment, and failed to qualify the written test, filed application for rechecking and remarking of answer books---Public Service Commission declined the rechecking and remarking of the answer books---Petitioner alleged that the refusal was mala fide, violation of its instructions as well as discriminatory because similar instructions were prevalent in different autonomous bodies i.e. Universities, the Boards of Intermediate and Secondly Education---High Court dismissed writ petition filed by the petitioner through impugned judgment---Petitioner had failed to substantiate his argument by reference of any statutory provision---Boards and Universities had their own rules and regulations, whereas the Public Service Commission was altogether an independent autonomous body having its own rules, regulations and criteria---Unless it was specially provided by any statute that para meteria provision of any other statute would be attracted or applicable, no institution or legal person could be forced by implication to follow the mode or procedure of any other institution---Without any specific express provision argument of the counsel for the petitioner that the standard prescribed for marking papers of Universities and Boards was applicable to Public Service Commission, was without any substance---High Court had recorded an authoritative judgment after appreciation of every aspect of the case and taking into consideration the legal precedents---Petitioner having failed to point out any violation of statutory provisions or any legal infirmity in the impugned judgment of High Court, petition for leave to appeal was dismissed by the Supreme Court, in circumstances.

2011 SCMR 848 rel.

Muhammad Yaqoob Khan Mughal, Advocate for Petitioner.

Date of hearing: 25th July, 2011.

2012 P L C (C.S.) 1502

[Supreme Court (AJ&K)]

Present: Muhammad Azam Khan, A.C.J. and Chaudhry Muhammad Ibrahim Zia, J

AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 3 others

versus

Sardar ABDUL AZIZ KHAN

Civil Appeal No.86 of 2010, decided on 19th February, 2011.

(On appeal from the judgment of the Service Tribunal dated 19-10-2009 in Service Appeal No.546 of 2004).

(a) Azad Jammu and Kashmir Civil Servants Pay Revision Rules---

----R. 8(3)---Claim for grant of Selection Grade---Selection grade---Concept---Civil servant, who was inducted in service in 1974, was promoted as Section Officer in 1995---New pay scales had been introduced, whereby the facility of selection grade had been withdrawn, but the Government of Pakistan had implemented the Policy, whereby employees who were eligible for selection grade or move over up to December, 2001, were declared entitled for selection grade---Civil servant, in the present case fell at serial No.21 of the Seniority List and other civil servant, who was at serial No.20 of the list of Section Officers, was granted selection grade-B-18 on 26-2-2004, with effect from November, 1999, on the post vacated by Under Secretary, who was on deputation---Another Section Officer was promoted on officiating basis as Deputy Secretary on 3-2-2002 and was confirmed on 28-6-2003---Claim of civil servant was that after promotion of Section Officer on officiating basis, the post of grade 18 fell vacant and that it was his entitlement to get the selection grade against that vacant post---Concept of selection grade was that when avenues of advancement in career were non-existent or inadequate, then a civil servant could be allowed a higher pay scale in the cadre for a post with the same nomenclature, status and duties---Formula for sanctioning the selection grade had been changing from time to time---Under provisions of R.8(3) of Azad Jammu and Kashmir Civil Servants Pay Revision Rules, selection grade in the higher pay scale would be admissible to holders of posts of B-1 to B-15, who had minimum length of two years' service, and for civil servant in grade B-16 and above after 5 years service in ordinary pay scale---Said Rule had further provided that higher pay scale would be allowed on seniority-cum-fitness basis and on recommendation of appropriate Departmental Promotion Committee or Board---Notification dated 4-12-2001 had clearly laid down that if a selection grade was due to a civil servant before 13-11-2001, his case would be considered and decided in accordance with the then prevalent policy---Case of civil servant for grant of selection grade had to be considered in the light of R.8(3) of Azad Jammu and Kashmir Civil Servants Pay Revision Rules---Order accordingly.

(b) Administration of justice---

----If an act was required to be performed according to the prescribed manner by law or rule, same should be performed according to the prescribed manner alone or not at all.

Aziz-ur-Rehman v. Presiding Officer Local Council Elections and others 1993 SCR 177 rel.

Raja Gul Majeed Khan, Advocate-General for Appellants.

Sardar Abdul Sammie(?) Khan, Advocate for Respondent.

Date of hearing: 8th December, 2010.

2012 P LC (C.S.) 1542

[Supreme Court (AJ&K)]

Present: Ch. Muhammad Ibrahim Zia and Sardar Muhammad Sadiq Khan, JJ

Syed SHABBIR AHMED BUKHARI

Versus

CHAIRMAN, BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, MIRPUR and 9 others

Civil Appeals Nos.87 and 89 of 2011, heard on 21st May, 2012.

(On appeal from the judgment of the High Court, dated 6-6-2011 in Writ Petitions Nos.243 of 2006 and 12 of 2007)

Civil service---

----Removal from service---Employees of Board of Secondary Education were charged for misconduct due to tampering and forgery in the examination papers of the candidates---Three Committees were constituted for inquiry in the matter; and the employees having been found guilty of the charge against them, were removed from service by competent Authority---Writ petitions filed by the employees against order of the competent Authority were dismissed by the High Court on the sole ground that Inquiry Committees were not arrayed as party in the line of respondents---Validity---Employees had arrayed some of the members of Inquiry Committees in their individual capacity, whereas Committees should have been arrayed in their legal capacity---No effective order could be passed without impleading the necessary party in the line of respondents---Failure of the employees to array Inquiry Committees as party in the line of respondents, was against the law---Judgment of High Court was in accordance with law on the point, and same could not be interfered with in appeal before Supreme Court.

Muhammad Resham Khan's case, 1990 CLC 1355; Muhammad Nazir Khan v. Azad Government and others 2001 YLR 3271 and Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaque and 3 others 1998 PLC (C.S.) 153 rel.

Bostan Chaudhry for Appellant (in Civil Appeal No.87 of 2011).

Sardar Muhammad Azam Khan for. Respondent- Nos. 1 to 3 and

5 to 7 (in Civil Appeal No.87 of 2011).

Raja Khalid Mehmood for Appellant (in Civil Appeal No.89 of 2011).

Sardar Muhammad Azam Khan for Respondents Nos. 1 to 3 and

6 (in Civil Appeal No.89 of 2011).

Date of hearing: 21st May, 2012.

JUDGMET

SARDAR MUHAMMAD SADIQ KHAN, J.--- The captioned appeals by the leave of the Court are addressed against the consolidated judgment of the High Court dated 6-6-2011 whereby writ petitions filed by the appellants have been dismissed. As in both the appeals same subject-matter is involved, therefore, being disposed of through the consolidated judgment.

1. Brief facts forming the background of the appeals are that the appellants were employees of the Board of Intermediate and Secondary Education Mirpur (hereinafter to be referred as BISE). Both of them were deputed in the Secrecy Department of BISE which deals with the results of the examinations. The appellant, Shabbir Ahmed Bukhari was key holder and incharge of the examination record of class 9th whereas the appellant, Ashfaque Shahid was key holder and incharge of the examination record of class 10th. Both of them were charged for misconduct due to tempering and forgery in the examination papers for the year 2005. Three Committees were constituted for Inquiry relating to tempering of the results of the candidates namely, Muhammad Asif son of Kala Khan, Roll No.822142, Amina Aftab daughter of Raja Muhammad Aftab, Roll No.900702 and Somia Bukhari daughter of Syed Ishaq Bukhari, Roll No.800382. The committee regarding probe in the forgery committed in the real marks obtained consists of Muhammad Akram Mirza, Associate Professor Government Post Graduate College Mirpur and Mirza Rashid Ahmed Retired District Education Officer. The second committee was constituted for conducting inquiry regarding forgery and tempering made in the answer sheets of the candidates for the examination held in spring and autumn 2005 which consists of Syed Umar Farooq Gillani and Muhammad Siddique Janjua. A third inquiry committee was constituted in the light of the direction issued in the judgment of the High Court dated 1.9-10-2006 in a case titled Amina Aftab v. Board of Intermediate and Secondary Education, which consists of Professor Farooq Tahir, Professor Noor-ul-Hassan Fida and Ch. Javed Iqbal. All the three committees submitted their respective reports to the authorized officer. The criminal proceedings were also initiated against the appellants in the light of the judgment of the High Court. The matter went up to the Prime Minister of the Azad Jammu and Kashmir, who is Controlling Authority of the BISE. Ultimately, the appellants were found guilty of the charge of tempering and forgery made in the answer sheets and the marks sheets. A major penalty was imposed in the light of the recommendations of the Inquiry Committees and the appellants were removed from service by the competent authority on the charge of misconduct. Both the appellants filed separate writ petitions in the High Court alleging therein that neither they have committed misconduct nor they have been provided an opportunity by the inquiry committees for leading the evidence. The learned High Court, after necessary proceedings, dismissed the writ petitions through a consolidated judgment on the sole ground that the inquiry Committee is not arrayed as party in the line of respondents. Both the appellants filed separate appeals against the judgment of the High Court which is subject matter in the instant appeals.

2. Raja Khalid Mehmood and Bostan Chaudhry, Advocates, the learned counsel for the appellants, after brief statement of facts, opposed the judgment of the High Court on numerous grounds. They submitted that the High Court has failed to consider the fact that the Members of Inquiry Committee have been impleaded as party in the writ petitions. They further submitted that the inquiry Committee had neither any head/chairman nor any Secretary, thus, the appellants have correctly impleaded the inquiry committee in the form of members, hence, the High Court fell in error while recording observations on this issue. They further submitted that all the staff members along with the appellants took oath on the "Holly Qurran", but except the appellants the other's were exonerated which is clear discrimination and violation of the requirement of taking oath and they have been made scape goat to justify themselves. It is further argued on behalf of the appellants that criminal proceedings were also initiated wherein, the local police declared the appellants as innocent whereas the High Court has not taken into consideration this very important aspect of the matter while recording the impugned judgment. It is further submitted on behalf of appellants that BISE has failed to take necessary and strong measures to stop entry of outsiders in the secrecy branch and the record being open to every one, the safe custody of the same could not be put on the shoulders of the appellants. He finally submitted that the judgment of the High Court may be set aside, the order passed by the official respondents on 1-2-2007 and 30-9-2006 and the inquiry proceedings conducted against the appellants may kindly be declared as illegal, without jurisdictional competence, mala fide, against the verses of the "Holly Qurran" and the appellants be re-instated in service with full benefits.

3. On the other hand, Sardar Muhammad Azam Khan Advocate, the learned counsel for official respondents, defended the impugned judgment of the High Court on all counts. He argued that the appellants were deputed in the Secrecy Room for safe custody of the examination record i.e answer sheets of the candidates, etc. They were the key holders of the secrecy room and they were aware of the secret "S" numbers and it was not possible to take away 4 answer sheets out of millions, without their help and connivance, He further submitted that the competent authority constituted Inquiry' Committees to probe into the matter and after a detailed inquiry, tempering and forgery was proved against the appellants. He further contended that the major penalty was imposed to the appellants and they were removed from service on the charge of misconduct. He submitted that the Inquiry Committee has not been arrayed as party in the writ petitions, however, the members of inquiry committee have been arrayed as respondents in their individual capacity which is not warranted by law, therefore, the judgment of the High Court is well reasoned and quite in accordance with law. The appeals before this Court are not maintainable and liable to be dismissed.

4. We have heard the learned counsel for the parties and perused the record made available with due care. The moot point involved in this case is that whether the members of the inquiry Committee can be arrayed as respondents in their individual capacity or it is the Inquiry Committee which was to be arrayed as party by the appellants in their writ petitions. The High Court has focussed its observation on this sole point and ultimately reached the conclusion that the writ E petitioners are not maintainable. The High Court has made following observation:

"Petitioners have not impleaded the Inquiry Committee in line of the respondents, however, the members of the Committee have been impleaded in individual capacity, therefore, in view of law laid down by the apex Court, in Muhammad Resham Khan's case, 1990 CLC 1355 these petitions are not maintainable."

The observation of the High Court on the issue is quite in accordance with law which is supported by the judgment of the apex Court, therefore, we accordingly fortify the same, Our this observation is supported by the case titled Muhammad Nazir Khan v. Azad Government and others, reported as 2001 YLR 3271 wherein this Court observed as under : ---

"... Therefore, supposing we accept the appeal and decide to declare that land acquired from the appellant cannot be utilized for construction of a plaza we would still not be able to give any relief because Chairman of the Pearl Development Authority, who is respondent, is not constructing the plazas but it is the Authority which is doing so, but the Authority is not impleaded as a respondent for which reason no writ can be issued to it. There is no point in adverting to the merits of the case in view of the fact that no effective writ can be issued in the present case."

A study of above referred observation reveals that no effective order can be passed without impleading the necessary party in the line of respondents. In the instant case, 3 inquiry committees were constituted but the appellants have failed to array them as party in the line of respondents which is against the law laid down by the apex Court, therefore, the judgment of the High Court is in accordance with law on the point.

1. It is interesting to mentioned here that 3 Inquiry Committees were constituted to probe into matter but the appellants have arrayed some of the members, of Inquiry Committees in their individual capacity which is against law. The committees should have been arrayed in their legal capacity. It appears from the pleadings that the only one committee conducted the inquiry but according to record three committees submitted their reports separately. The appellants neither arrayed the other two committees as party in the line of respondents nor pleaded about their reports which is necessary ingredient of this case, therefore, in our estimation, the appeal is liable to be dismissed on this ground as well. Reference can be made to a case titled Qazi Liaqat Ali Qureshi v. 'Hafiz Muhammad Ishaque and 3 others, reported as 1998 PLC (C.S.) 153 wherein this Court observed as under:---

"... In the writ petition it was averred more than once that the Selection Committee in derogation of the rules declared the appellant as being successful in the test and interview and placed him at serial No.1 in the merit list. It was also averred that the "sanad" which was produced before the Selection Committee by respondent No.4 was not equivalent to B.A. nor he had passed the additional subjects as provided in the Rules but the Selection Committee travelled beyond its jurisdiction and placed the appellant on the top of the merit list. These averments show that the basic grievance of the respondent was against the Selection Committee which was, as said earlier not impleaded as a respondent. By now it stands settled that if a necessary party which is not impleaded as respondent in absence of which no effective writ could be issued the writ is liable to be dismissed on the sole ground." (Underlining is ours)